1 


l£x  SlibrtB 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  book 

Because  it  has  been  said 
" Ever' thing  comes  i'  him  who  wails 

S?:cept  a  loaned  book." 


A\  \-R\  Arc  imT.C  Ti'RAi.  and  Kim;  Aki  s  Iji^r  \in 
Gli  Tor  Si  ^Moi  K  B.  Di  RSI  Oi  i)  York  [.\m  \R\ 


W 


1 


Digitized  by  the  Internet  Archive 
in  2013 


http://archive.org/details/annalsofcorporatOOchee 


•ANNALS 

'  OF  THE      .  \ 

CORPORATION 

RELATIVE  TO  THE  LATE 

.CTontestcD  (Bltttions  5 

WITH 

STRICTURES 

UPON  THE 

CONDUCT  OF  THE  MAJORITY. 


IN  SEVEN  NUMBERS. 


By  LTSANDER, 


Do  nothing  vroug — norbcar  it. — Euripides. 


EW-YOPkK  :^ 

PRINTED  BY  DEXNISTON  AND  CHEETHAM^ 

NO,    14)?,  PEARL-STTUiT. 


Annals^  &c, 


No.  1. 

To  the  late  MAJORITY  in  the  COMMON  COUNCIL. 


Let  Envy  in  a  wliirhvind's  bosom  hurl'd, 
Outrageous  search  the  corners  ol'tlie  world, 
Ransack  Uie  present  times — look  back  to  past. 
Rip  up  theluture,  and  confess  at  last 
No  times,  past,  present,  or  to  come,  could  e'er 
Produce,  and  Wess  the  world,  with  such  a  pair. 

Churchii  l. 


J  SHALL  not,  Gentlemen,  apologize  to  yau 
for  the  delay  of  a  publication^  with  which  you  could 
have  readily  dllpenfed. 

Engagements  more  neceftary  to  myfelf,  prevented  an 
earlier  attention  to  your  merits.  The  fame  you  have  ac- 
quired is  fcarcely  fufccptible  of  addition  from  the  fceW« 
pencil  of  a  hiftorian. 

Should  I  compliment  you  with  the  pofiefTion  of  talents 
©r  public  virtue,  it  would  be  a  facrifice  of  fmcerity  to  po- 
litenefs.  The  language  of  panegyric  would  be  an  infult 
to  the  fenfibility  of  your  feelings.  Even  the  Philips  of 
your  body  would  view  it  as  the  hidden  fling  of  irony,  or 
the  fatire  of  burlefque. 

The  acquirement  of  a  public  ftation  is  the  greatcft  in- 
jury which  a  w:ak  man  can  experience  from  Fortune. 


'4 


Nature  had  calculated  you  to  glide  along  the  ftream  of 
private  life,  with  eafy  and  undiftinguifhed  infignificance. 
You  might  even  have  continued  refpe6l:able  in  a  ftate  of 
happy  obfcurity.  Unfortunately  for  yourfelves  you  havebeen 
a6lors  upon  a  ftage,  without  capacity  to  execute  the  parts 
you  were  called  upon  to  perform.  Bewildered  and  per- 
plexed, enveloped  in  a  labyrinth,  loft  in  confufion,  and  ig- 
norant of  your  characters,  you  had  but  too  much  reafon 
to  lament  the  abfence  of  your  prompter. 

You  have  undertaken  the  decidon  of  queftions,  to  which 
you  are  incompetent. 

You  have  ufurped  the  province  of  judges  upon  fubje£l:s 
you  do  not  underftand— with  temerity  you  have  deprived 
your  country  of  its  moft  valuable  rights.  It  will  be  for- 
tunate for  yourfelves  if  you  can  refort  for  refuge  to  the 
plea  of  indifcretion. 

In  the  calmnefs  of  reflection  you  will  acknowledge  that 
5  have  treated  you  with  delicacy  and  indulgence.  "With 
a  field  fo  ample  before  me,  had  I  given  way  to  ridicule  J 
and  invective,  even  my  limited  powers  could  have  placed 
your  feelings  upon  the  rack. 

I  claim  no  little  merit  for  the  exerclfe  of  clemency. — 
You  have  been  the  authors  and  performers  of  the  drama. 
If  you  have  rendered  yourfelves  contemptible  or  criminal, 
the  fault  is  your  own.  Your  misfortunes  or  your  vices 
are  not  attributable  to  Lysander. 

A  city  deprived  of  its  freemen  by  the  intrigues  and 
confpiracy  of  its  magiftrates — Electors  defpoiled  of  their 
fufFrages  by  the  arbitrary  decifion  of  an  interefted  tribunal. 
An  election  defeated  by  violence  and  ufurpation,  pubHc 
officers  openly  defer  ting  their  pofts  of  duty,  and  leaving- 


5 

a  community  to  Its  fate.  Our  police  and  Inftltutions  fuf- 
pended  by  ranmefs  and  petulancy.  Our  poor  dependent 
upon  voluntary  contribution.  Our  watch  maintained  by 
individual  patriotifm.  Our  lives  and  property  expofed  to 
the  attacks  of  midnight  depredation,  had  it  not  been  for 
the  interpofing  hand  of  republican  virtue.  Such  is  a  fum^ 
mary  and  imperfe6i;  piclure  of  madnefs,  difappointment 
and  defperation.  You,  Gentlemen,  have  taught  us  an 
important  lelTon.  You  have  convinced  us  how  little  the 
tranquility  of  a  great  and  populous  city  depends  upon 
niagiftrates  like  yourfelves. 

We  have  approached  a  crifis  which  demands,  and  trufl: 
me  fliall  obtain,  a  radical  remedy.  Our  rights  are  too 
ineflimable  to  be  placed  within  the  controui  of  any  future 
corporation.  It  is  not  the  feat  of  an  alderman,  but  the 
eternal  privileges  of  the  people,  which  are  at  fhakc,  nor 
-fhall  we  be  fatisfied  with  trivial,  momentary,  and  tempo- 
rizing meafures.  The  rights  of  a  magiftrate  may  be  fettled 
by  the  interv^ention  of  a  court  of  juftice.  Thofe  of  the 
inhabitants  can  only  be  reflorcd  by  the  fuperior  interpofi- 
tion  of  the  Legiflature.  Such  then  fliould  be  tlie  perfe- 
vering  efforts  of  patriotifm.  We  muft  not  relax  in  our 
endeavours  until  the  rights  of  the  people  are  eftabliflied 
[inon  a  firm,  fubftautial,  and  unperiihable  foundation. 


LYSANDER. 


No.  IL 

tNTRODUCTORY  OBSERVATIONS. 


In  times  of  public  danger,  it  is  every  man's  duty  to  withdraw  Iiis  tliougn^s 
in  some  measure  from  iiis  private  interest,  an-et  employ  part  of  his  time  for 
the  general  welfare."  Idler., 

'^I^HE  primary  object  of  every  political 
eftablifliment,  (liould  be  to  promote  the  general  welfare  of 
the  people.  The  police  of  cities  as  well  as  the  govern- 
inent  of  "ftates,  is  intended  to  preferve  the  eflential  interefls 
of  the  public.  Whenever  we  fpeak  of  the  rights  and  the 
powers  of  a  corporation,  it  is  proper  to  enquire  who  arc 
the  parties  that  compofe  it  ?  and  what  are  the  purpofes 
fcr  which  it  was  eftablifhed  ? 

If  it  (hould  be  contended  that  the  prefcnt  Charter  of 
this  City  was  intended  for  the  benefit  of  the  members  of 
the  Common  Council,  in  oppofition  te  the  priveleges  of 
the  citizen.  Should  it  be  maintained  that  this  Royal 
grant,  is  the  exciufive  property  of  the  aldermen  and  af- 
liftantSj  in  derogation  of  the  rights  and  libertie3  of  the 
inhabitants. — Then  it  would  be  time  that  the  interpofing 
hand  of  public  juftice  fhould  be  extended  to  demolifli 
the  fatal  inftrumcnt  of  flavery  and  difgracc. 

The  prefent  Charter  was  derived  from  the  fucceflive 
grants  of  former  fovereigns.  It  was  penned  at  periods,  in 
which  the  rights  of  the  people  were  imperfectly  under- 
flood  and  eftablifhed.  To  promote  the  authority  of  the 
Monarch,  and  to  guard  the  high  prerogatives  of  his  throne 
was  the  primary  abject  of  government  throughout  every 


* 


7 

department  of  the  empire.  It  is  incompatible  witli  the- 
intercfts  of  royalty,  that  the  inflitutions  of  civil  freedoni 
ihould  exift  within  any  department  of  its  dominions.  The 
power  of  the  prince  muft  neteflarily  be  fupported  by  the 
influence  of  his  vicegerents.  It  muft  be  fortified  and 
protected  by  the  fubordinate  dominion  of  fiitclhte  author- 
ity. Hence  it  is  that  in  our  civil  inftitutlons  we  ftill  per- 
ceive fomc  glaring  chara£lers  of  ariftocracy,  and  are  yet 
fubjefled  to  fome  remains  of  the  ancient  policy,  inconfift- 
ent  with  the  fpirit,  the  principles  and  the  genius  of  our 
government. 

It  is  a  matter  of  aftonlfhrnent,  that  a  city  fo  enlightened, 
and  which  has  fo  eminently  contributed  to  the  reftoratioir 
of  public  liberty,  fhould  have  fo  long  fubmitted  to  die 
abufes  of  its  municipal  adminiftration.  When  we  view 
the  men  who  compofe  the  majority  of  the  Common  Coun- 
cil. When  we  confider  the  flendernefs  of  their  influence 
as  individuals.  When  wc  contemplate  the  paucity  of  their 
talents,  wc  are  Imprefl^ed  with  mingled  emotions  of  furprlk 
and  indignation,  that  men  fo  deftitute  of  learning,  fliould 
have  been  permitted  to  become  with  impunity  the  defpoil- 
crs  of  the  rights  of  their  fellow-citizens. 

The  mal-admlniftratica  of  our  City-police,  was  un- 
queftionably  a  part  of  a  more  general  and  complicatcii 
fyftem.  The  fame  policy  which  attempted  the  creatioiL 
of  armies — the  multiplication  of  taxes,  and  prodigality  ot" 
expenditures,  in. the  nationijl  government,  dictated  precife- 
ly  the  fame  meafures  with  refpect  to  our  internal  adminis- 
tration. In  the  purfuit  of  this  plan,  it  was  neccflary  that 
their  favorite  inftru/nents  fhould  be  rewarded,  and  that 
the  influence  of  the  Commonalty  fhould  be  compleatly  a- 
boliflied.  Offices  and  emoluments  were  heaped  upon  the 
needy  or  avaricious  members  of  tiie  board,  ^nd  there  is  buj: 


too  much  reafon  to  believe,  that  they  were  orlgmally  cre- 
ated to  reward  the  demerits  of  poUtical  infidelity.  The 
dignity  of  the  magiftracy  was  degraded,  and  our  principal 
civil  officers  converted  into  contractors  for  jobs.  The 
character  of  an  alderman  was  lost  in  that  of  a  dock  maft- 
cr,  or  fuperintendant  of  fcavengers  ;  and  the  name  of  affift- 
ant,  confounded  with  fome  fervile  and  petty  employments- 
Such  was  the  univerfal  practice  of  the  Common  Council,  in 
the  donation  of  its  offices — a  practice  engendered  in  corrup- 
tion— It  was  continued  without  a  fenfe  of  decency  or  a 
feeling  of  fhame. 

The  adminiftration  of  the  late  Mayor,  was  uniformly 
exerted  to  the  deftruction  of  every  popular  principle  in  our 
charter.  Had  it  not  been  for  the  happy  change  which 
has  taken  place  in  the  affairs  of  the  United  States,  there 
is  too  much  probability  that  his  defigns  would  have  fuc- 
ceeded. 

By  the  Charter  of  the  City,  as  it  at  prefent  ftands,  the 
inhabitants  poff^ffed  of  corporate  rights,  are  divided  into 
freeholders  and  freemen.  In  them  the  effential  rights  of 
the  body  politic  are  centered.  They  are  the  fountain 
from  whence  the  government  of  the  city,  agreeably  to  its 
incorporation,  fliould  in  reality  be  derived.  Every  other 
individual  muft  be  confidered  as  a  fojourner  or  tempor- 
ary refident.  For,  except  in  times  of  public  fairs,  no  other 
perfon  can  legally  exercife  his  trade  or  occupation,  within 
the  limits  of  the  town.  Whatever  may  have  .  been  the  ori- 
ginal policy  of  impofing  this  reftri^tion — However  it 
may  have  been  intended  to  narrow  the  privileges  of  ci- 
tizenfliip,  it  is  obvious  that  the  term.s  of  the  charter  lead 
to  the  alternative,  either,  that  a  fufficlent  number  of  free- 
citizens  muft  be  appointed^  or  that  the  bufmefs  of  the  city 
muft  be  at  an  end. 


9 

ft  Is  alfo  dlrecled  that  tlic  election  of  Charter  Oihcer* 
(hall  be  made  by  the  freemen  of  thecity,  being  inhabitants, 
and  the  freeholders  of  the  refpedive  wards.  To  be  a 
freeholder  or  a  freeman,  is  therefore  a  necefTary  pre-requl- 
(ite  to  entitle  an  individual  to  the  cleclive  franchife.  An 
a£l  of  the  leglflature  has  altered  the  former  qualification 
from  a  freehold  generally,  to  one  of  twenty  pounds.  "With 
a  view  to  continue  his  own  creatures  into  office,  and  know- 
ing that  the  ftrong  current  of  popular  fentiment,  was  di- 
rected agalnft  him.  In  an  early  part  of  his  adminlftration, 
Mr.  Varick  made  his  daring  and  defperate  effort  to  deftroy 
the  whole  body  of  freemen,  and  to  place  the  powers  of 
the  city  exclufively  in  the  hands  of  the  freeholders.  Ac- 
cordingly we  find  that  fince  the  year  1 792,  no  more  than 
fifty  four  freemen  have  been  appointed.  Many  of  them 
his  friends,  and  moft  of  them  only  for  the  purpofe  of  be- 
ing qualified  to  hold  particular  offices.  This  extraordinary 
circumftance  is  matter  of  record,  and  placed  above  the  reach 
of  controverfy.  So  completely  did  this  wonderful  man  fuc- 
ceed  in  his  projeCt,  that  in  a  city,  which  boalts  its  60,000 
inhabitants,  fcarcely  300  freemen  can  be  found. 

In  the  accomplifhment  of  this  talk,  an  obftacle  was 
|5refented,  which  could  only  have  been  overcome  by  the 
niofl  furprifing  fagacity,  or  perhaps  overlooked  by  the  mofl 
egregious  ftupidity.  The  charter  had  directed  that  no 
man  (hould  purfue  his  occupation  without  firft  obtaining 
the  freedom  of  the  city.  Its  terms  are  pofitive  aixl  di- 
rectory. It  leaves  the  Chief  Magiftrate  no  difcretionary 
powers.  Mr*  Varick,  in  his  magifterial  capacity,  found  it 
neceffiiry  to  grant  licences  to  cartmen,  rnd  to  the  keepers 
of  inns.  This  confummate  politician,  in  violation  of  the 
charter,  with  liis  ufual  confiftcncy,  gave  the  licences — 
received  the  fees- — permitted  the  men  to  follow  their  oc-' 

B 


f 

to 


mipations,  an<r  mofl  ftrenuoufly  refiifed  them  the  ha^owe  J 
gift  of  freedom.  * 

So  bold  and  flagrant  a  violation  of  public  rights,  is  fcarce* 
ly  to  be  paralleled  in  the  annals  of  hiftory.  In  the  courfe 
of  a  fevi^  years  it  produced  a  total  revolution  in  the  nature 
of  our  government.  The  vi^hole  body  of  freemen  who 
were  intended  to  compofe  a  principal  conftitucnt  part 
of  the  incorporation,  are  almoft  extind,  and  in  a  little  time 
the  hand  of  death  muft  terminate  the  exiflence  of  the  re- 
mainder. This  mafter  ftroke  of  policy  was  intended  to 
eftablifh  a  fyftem  of  tyranny,  and  by  depriving  the  great 
body  of  the  people  of  their  fhare  in  the  reprefentation,  to- 
fubje6l  them  to  the  arbitrary  dominion  of  the  Commoa 
Council. 

The  right  of  being  reprefented  In  the  body  by  whofc 
laws  we  are  bound  conftitutes  our  moft  valuable  and  eflen- 
tial  political  privilege.  It  is  the  key  ftone  in  the  arch  of  public 
liberty  upon  which  the  fafety  and  exiftence  of  the  fabric 
depends.  Taxation  without  reprefentation  is  the  grea  teft- 
badge  of  flavery    and  he  who  fubmits  to  it  muft  forfeit 

*  The  jealousy  of  our  late  Mayor  towards  the  Cartmen  of  this  City  wat 
notorious    That  respectable  body  of  men  have  acquired  immortal  honor 
from  their  general  patriotism  and  independence — I  speak  not  to  flatter 
them — letth«?m  wear  the  laurels  they  have  won — feel  towards  them,  and 
therefore  shall  express  the  most  sincere  respect — Wherever  I  can  advocate 
their  rights,  gratitude  shall  prompt  nae  to  do  it.    I  feel  that  the  posses- 
sion of  my  own  has  been  in  *  great  measure  owing  to  tlieir  exertions. 
Withholding  from  them  the  freedom  of  the  city  was  occasioned  by  the 
TOost  tyrannical  and  illiberal  policy.    Like  the  conduct  of  the  British 
*nerchanti  in  refusing  to  give  them  employ,  unless  they  voted  against 
their  owu  principles,  it   was  intended  to  enslave  them.    It  deprived  them 
not  only  of  the  privileges,  but  also  of  the  station  of  citizens.    It  was  aa 
innovation.     It  was  a  violation  of  the  charter  which  originated  with  Mr. 
Varick,    Mr.  Duane  and  all  preceding  mayors,  had  usually  conferred  up- 
on them  the  freedom  of  the  city  ;  and  justly  considered  themselves  bouiMl 

to  do  so.    The  city  records  prove  the  fact.    From   1783  to  1792 — 

688  freemen  were  appointed,  of  whom  393  were  cartmen.  From  March 
1793  to  the  present  time,  only  54  (amongst  whom  there  is  not  a  single 
eartman)  have  been  made.  The  conduwon*  from  such  a  fact  are  too  strOQf , 
and  ebvioui  to  require  corameat.  L  ys ANDER. 


liis  pretenfions  to  the  enjoyment  of  civil  freedom.  It  ^\'a3 
for  the  eftablifhment  of  this  iiieftimable  principle  that  \vc 
refifted  the  power  of  Britain,  and  encountered  the  perils 
of  a  fevcre  and  arduous  conteft.  In  this  revolution  we 
happily  fucceedcd,  and  laid  the  ftrong  foundation  of  a  gov- 
ernment of  reprefcntation.  Shall  it  then  be  faid  that  thofe 
\rho  are  competent  to  the  choice  of  the  rulers  of  an  em- 
pire are  incapable  to  elcdl  the  fubordinate  members  of  a 
corporation  ?  Mufl:  it  be  recorded  in  our  future  annab, 
that  the  men  who  withftood  the  fleets  and  armies  of  a  pow- 
erful monarch  were  compelled  at  length  to  bend  beneath 
the  yoke  of  a  board  of  aldermen  ?  Enjoying  the  full  pof- 
feflion  of  freedom  with  rcfpe61:  to  our  national  inftitutions. 
Are  we  to  fink  into  the  abjed:  condition  of  flaves,  with 
regard  to  our  city  adminiftration  ? 

Defeated  in  every  other  quarter,  and  driven  from  every 
other  refource,  that  party  which  has  hitherto  been  falfely 
denominated  federal,  were  determined  at  all  hazard,  and 
by  every  ad:  of  fraud  to  retain  pofleflion  of  tlie  government 
of  the  city. 

Although  the  late  elecSbion  for  governor  had  abundantly 
demonftrated  that  the  republicans  poffefs  a  majority  of 
freehold  votes,  yet  it  was  fondly  imagined  that  the  influence 
and  property  of  ihe  Englifli  merchants  would  enable  thofe 
f'^V y^y^^  federalijis  to  retain  their  afcendancy.  For  a  num- 
ber of  years  our  commerce  has  been  principally  engrofTed 
by  Britilh  fubje6i:s.  Enjoying  our  fpoils,  largely  partaking 
of  our  riches,  and  retaining  their  loyalty  to  their  fovereign. 
They  have  been  uniform  and  active  inftruments  in  the 
hands  of  ambition.  United  to  the  federalifts  by  a  fimilarity 
of  views  and  identity  of  principles.  The  torics  of  the  old 
fchool  united  with  thofe  of  the  new,  to  effcdl  tlic  total  fub- 
verfion  of  our  republican  inftitutions. 


IE 


in  tFic  profecmtlon  cf  their  defignsthe  tory  ccralitlon  es- 
tabiiflied  the  pofition  as  a  principal  article  of  their  creed, 
that  property  and  not  individuals  fhould  be  reprefented. 

Blindly  attached  to  the  fancied  privileges  of  a  lifelefs 
fod,  they  forgot  that  maw,  for  vi^hom  the  God  of  Nature 
made  the  Univerfe,  received  fuperior  rights  from  heaven. 
Mr.  Varick,  vi^hofe  religion  was  confined  to  the  prote£lion 
of  the  rights  of  property,  vi^ithout  deigning  to  notice  the 
privileges  of  a  being  formed  after  the  exprefs  image  of  his 
maker,  had  already  extinguifhed  the  whole  body  of  free- 
rcicn.  It  only  remained  to  marflial  the  privileged  order  of 
freeholders  in  array.  The  playful  proprietors  of  the  the- 
atre, and  the  bacchanalian  owners  of  the  Belvidere,  pre- 
fented  a  principal  column  of  the  phalanx — fraught  with 
madnefs  and  defpair,  they  refolutely  refolved  to  withhol'd 
tiie  government  of  the  city  from  the  hands  of  the  odious 
republicans. 

When  from  their  plan  of  operations,  it  was  difcovereS 
that  they  had  formed  a  fettled  intention,  by  annihilating 
freemen,  and  rendering  the  eftates,  and  not  the  perfons  ot 
Jaien,  the  baiis  of  reprefentation,  to  wreft  from  the  people 
their  rights  of  eledion.  To  counteract  thofe  defigns,  it 
became  neceffary  for  the  republicans  to  oppofe  them  with 
their  own  weapons.  The  law  had  declared  that  every  man, 
poflefled  of  a  freehold  to  the  amount  of  twenty  pounds  free 
of  incumbrances,  fliall  be  entitled  to  vote  for  charter  offi- 
cers. Nothing  more  was  requifite,  than,  that  a  fufficient 
number  of  individuals  fhould  poflefs  themfelves  of  an  ef^ 
tatc  to  that  value,  in  conformity  to  the  terms  of  the  law. 
Accordingly  an  alTociation  of  refpedable  citizens  wa§ 
formed  for  the  laudable  purpofe  of  refiftirjg.the  oppreffion 
xve  had  fo  long  experienced  ;  reftoring  the  neceflary  body 
of  freemen^  and  re-eftabliHiing  the  ancient  rights  of  the 


'3 


^itf.  The  refult  of  this  memorable  eIe£i:ion  is  well 
known.  Wc  beheld  an  event  which  promifed  the  mofl 
aufpicious  confequences.  The  hopes  and  expedlatlons  of 
the  public  were  on  the  eve  of  being  realifed.  A  repub- 
lican magiftracy  would  have  enfured  the  correction  of  a- 
^ufcs — reftored  the  rights  of  the  community — placed  the 
eleftive  franchife  upon  a  firm,  liberal  and  conftitutional 
bafis  j  and  finally  promoted  the  liberties  and  profperity  of 
:he  city. 

LYSANDER, 


*7o.  in. 

ON  THE  RIGHT  OF  SCRUTINT. 


■Their     better  part  remains 


To  work  in  close  design,  by  fraud  or  guile 
^'What  force  effected  not." 

MiLTO.V. 


Jn  public  as  well  as  private  affairs  it  gen- 
ially happens  that  the  commifTion  of  one  crime  leads  to  the 
perpetration  of  another.  Unable  to  prevent  the  eledlion 
of  a  majority  of  republican  magiftrates,  the  federal  mem- 
bers of  the  Common  Council  were  determined  to  defeat  it 
\)j  a  rafh  and  defperate  interpofition  of  power* 

In  the  recefles  of  hearts  capable  of  defperate  defigns, 
they  immediately  refolved  upon  the  exercife  of  a  power> 
of  all  others  the  moft  dangerous  and  the  moft  liable  to  a- 
bufe.  This  they  term  the  right  of  fcrutinizing  into  the 
votes;  receiving  and  reje6i:ing  them  at  their pleafure,  and 
thereby  terminating  the  election  in  favor  of  any  candidate 
whom  they  may  prefer. 

It  is  eafy  to  perceive  the  confequences  refulting  from 
fuch  an  exercife  of  authority.  It  renders  eledions  in  a 
great  meafure  nugatory,  and  enables  the  majority  of  any 
public  body,  by  ftratagem,  intrigue  and  agreement,  to  con- 
tinue themfelves  in  office  as  long  as  they  think  proper. 

That  fuch  a  right  is  recognifed  by  the  charter  is  alto- 
gether denied.  But  fhould  it  even  be  maintainable,  it  is  fo 
repugnant  to  the  principles  of  our  government,  and  pro- 


dti£l:ive  of  fuch  dangerous  evils  as  to  require  an  Jmmediato 
repeal. 

The  claufe  in  the  charter  from  which  this  fingular  clain> 
has  been  derived,  declares  that  the  Common  Council  of  the 
city  for  the  time  being,  or  the  major  part  of  them  {hall 
have  the  fole  povi'er  of  determining  and  deciding  all  elec- 
tions of  all  and  every  their  officers  and  mim/}erSf  thereafter 
to  be  chofen  and  elected  in  or  for  the  faid  corporation  or 
any  part  thereof. 

With  refpedi  to  this  claufe,  it  Is  to  be  obferved  that  on 
account  of  the  high  importance  and  dangerous  tendency  of 
the  powers  to  which  it  is  fuppofed  to  give  rife,  it  lliould  not 
by  any  force  of  conftru£lion,  be  carried  to  an  extent  beyond 
the  precife  import  of  the  terms  it  employs. 

In  the  firft  place  it  is  obfervabk  that  the  expreflions  con- 
tained in  it  aie  "  officers  and  miniflers,^*  It  is  entirely 
filent  with  regard  to  members. 

Now  it  is  plain  that  the  grant  of  a  power  to  determine 
the  appointment  or  eledlion  of  a  fubordinate  officer  or  min- 
ifter  cannot  ex  vi  termini  apply  to  the  member  of  a  public 
body.  It  is  a  general  rule  in  law  applicable  to  the  inter- 
pretation of  all  ftatutes,  that  a  ftatute  which  treats  of  thing* 
or  perfons  of  an  inferior  rank,  cannot  by  any  general  words 
be  extended  to  thofe  of  a  fuperior.  The  example  given 
by  Blackftone  clearly,  eliicidates  the  pofition.  Thus  a  ftat- 
ute treating  of  Deans,  Prebendaries,  and  others  having 
fpiritual  promotion  is  held  not  to  extend  to  Bifhops,  though 
they  havt  fpiritual  promotion.  Deans  being  the  higheft 
perfons  named,  and  Bifliops  being  of  a  ftill  higher  order. 

The  cafe  given  by  Blackftone  in  illuftration  of  his  rule, 
ift  infinitely  ftronger  than  the  claufe  under  difguftion. 


i5 

¥fiat  cafe  contains  general  terms,  which  might  Include  ev- 
ery order  of  the  clergy,  (the  defcription  of  perfons  named.) 
Yet  it  was  decided  that  bifhops  being  fuperior  to  deans, 
were  not  included  in  the  generality  of  the  terms.  Tht? 
charter  only  fpeaks  of  minifters  and  officers  of  the  Commoi^ 
Council.  Without  containing  any  general  expreflion, 
which  could  beconftrued  to  extend  to  the  members  of  that 
body. 

That  a  clear  diftin£t:ion  exifts  between  the  officers  and 
the  m.embers  of  a  council,  common  fenfe  itfelf  would  dic- 
tate. Yet,  if  it  is  necefTary.  to  cite  authorities,  the  fceptic 
is  referred'  to  Kyd,  on  Corporations — to  the  fuppler 
ment  to  Viner — and  even  to  a  claufe  in  the  charter  itfelf,  dif 
redlly  following  that,  from  which  the  extraordinary  prero- 
gative in  queflion  is  claimed,  which  clearly  diftinguifhes 
an  officer  from  a  member  of  the  corporation. 

I  am  aware  it  will  be  contended,  that  an  alderman  is  a 
public  officer  as  well  2iS2.  member  of  the  Common  Council,  and 
that  becaufe  he  is  an  officer,  he  is  included  within  the  terms 
of  the  charter.  But  let  it  be  replied,  that  his  being  a  pub- 
lic officer  is  not'  fufficient  to  bring  him  within  thofe 
terms — he  mufl  be  an  officer  of  the  Common  Council ; 
that  is  to  fay,  an  officer  in  immediate  relation  to  that  body. 
Examine  the  claufe,  it  contains  the  relative  expreffion 

their"  that  expreffion  is  emphatical,  and  governs  the 
conflru6^ion  of  the  fentence — a  right  is  thereby  vefled  in 
the  Common  Council  to  decide  upon  the  eledliion  of  their 
officers  and  miniflers — an  alderman  is  not  an  officer  or  a 
minifter  of  that  board — On  the  contrary,  he  pref.ies  in,  and 
is  a  member  of  it.  That  body  is  compofed  of  aldermen  and 
affiflants.  Will  you  be  guilty  of  the  abfurdity  of  terming, 
them  their  own  officers  In  relation  to  the  Common  Coun- 
cil, an  alderman  is- nether  an  officer  or  a  minifter.  WhtJn 


1? 

he  is  an  oflicer,  as  in  his  capacity  of  juflice  of  the  peace, 
he  is  an  oiFicer  of  the  ftate,  and  not  of  the  Comraon  Coun- 
cil. He  maintains  his  feat  in  that  body  as  a  ftipcrlur  prc- 
-fiding  member,  and  is  above  the  reach  of  the  cxpreiTions 
contained  in  the  charter. 

It  is  remarkable  that  the  charter  itfelf,  when  it  fpeaks 
of  an  alderman  as  a  public  olhcer,  is  moft  emphatically 
expreffive  upon  this  point.  In  appointing  him  a  juflice  of 
the  peace,  and  invelllng  him  v/ith  judicial  authority,  it 
ftyles  him,  in  pofitive  language,  a  juftice  of  us,  our  heirs, 
and  fucccflbrs.  Before  the  rew-^lution  he  was  an  ofhcer 
of  the  crown.  Since  that  aufpicious  period  he  is  an  offi- 
cer of  the  people.  With  relation  to  the  Common  Council, 
he  is  a  member,  and  not  an  officer:  he  is  not  compre- 
hended within  the  terms  of  the  controverted  claufc. 

It  has,  indeed,  been  contended,  that  this  power  of  fcru- 
tiny  does  not  depend  upon  the  provifions  of  the  chartv^r, 
but  that  it  is  an  authority  incident  to  all  corporations,  in- 
afmuch  as  every  corporate  or  political  body  is  entitled  to 
.create  bye-laws  for  its  own  internal  regulations. 

In  reply  to  this  obfervation  let  it  be  remarked,  that  fuch 
argument  does  not  apply  to  the  prefent  cafe,  for  the  verv 
obvious  reafon,  that  oar  Common  Council  has  never 
thought  proper  to  conltitute  fuch  bye-law.  If  a  bve-law 
to  that  effect  had  been  made,  its  authority  would  liave 
been  queflioned — but,  as  fuch  ordinance  has  never  been 
paffed,  fhould  we  even  admit  the  authority.  Still  it  has 
remained  latent  and  inchoate,  becaufe  the  proper  mea- 
fures  have  not  been  taken  to  afford  it  an  effedual  ope- 
ration. 


With  regard  to  tlils  general  power  of  framing  bye-laws 
it  is  to  be  obfcrvcd,  that  it  i«.  Cvprcfcly  prcvldtd  by  the 


it 

charter,  that  fuch  bye-laws  fhall  not  be  repugnant  to  the  lavrt 
or  ftatutes  of  England,  or  of  the  ancient  colony.  Yet  thU 
provifion,  though  exprefsly  made,  was  altogether  unne- 
eeflaryj  for  it  is  not  to  be  denied,  that  thefe  inferior  go^ 
vernmcnts  niuft  always  remain  fubordinate  to  the  fuperioc 
authority  by  which  they  are  created.  It  is,  therefore,  a  pofi- 
tive  rule,  to  be  gathered  from  our  legal  writers,  that  every 
bye-lav/  contrary  to  the  general  laws  of  the  land  is  void; 
and  I  (hall  not  hefitate  to  fuperadd  the  pofition,  that  no 
bye-law  is  obligatory  which  is  repugnant  to  the  fpirit,  the 
genius,  or  the  principles  of  the  conftitution  of  a  ftate. 

Whatever  may  be  the  accordance  in  thofe  rules  which 
diredl  the  private  concerns  of  men,  the  principles  of  our 
political  law  are  extremely  variant  from  thofe  of  England. 
Our  fyftem  of  national  polity  is  eflentially  different  from 
that  of  a  community  whofe  conftitution  recognizes  the 
cxiftence,  and  embraces  the  interefts,  of  different  orders  of 
men.  The  general  tendency  of  all  the  Englifh  inftitu- 
tions  is,  to  fupport  the  powers  of  the  throne,  and  to  pro- 
te£l:  the  privileges  of  the  nobility — The  ftream  of  royalty- 
flows  and  circulates  throughout  every  department  of  focr- 
ety.  Hence  it  follows,  that  their  corporate  eftablifhmcnts 
have  been  modelled  as  miniatures  of  their  general  govern- 
ment, and  that  the  regulations  of  the  former  have  refem- 
bled  the  features  and  partaken  of  the  qualities  of  the  latter. 

Our  political  inftitutions  only  acknowledge  two  leading 
«nd  primary  objects — the  maintenance  of  focial  order,  and 
the  prefervation  of  the  rights  of  the  people.  Whatever 
eftablifliment  has  a  tendency  to  increafe  the  powers  of  one 
part  of  the  community,  at  the  cxpence  of  the  interefts  of 
another,  is  contrary  to  the  nature  of  our  civil  conftitution*, 
and  repugnant  to  the  principles  of  our  revolution.  Hence 
then,  it  is  neceffary  tliat  the  operation  «f  every  foreiga 


19 

tflablifhmcnt  (hoiild  be  caiitioufly  exafiiincd  before  it  i-,  r.a^ 
turalized  here.  Whatever  inflltution  is  uncongenial  wltl\ 
our  general  fyftcm  of  policy  muft  be  rejeaed,  whether  ic 
•obtains  in  England  or  any  otlier  country  on  the  globe. 

I  have  made  thcfe  obfervations  to  fliew  the  manifefl  in;- 
propriety  that  would  refult  from  an  indifcriminate  admiC- 
fion  of  Britifli  principles.  It  is  pofitively  denied,  that  the 
pretended  right  of  fcrutiny  is  appurtenant  to  corporation:; 
by  the  general  laws  of  England.  That  country  abounds 
with  incorporated  bodies,  inftituted  for  a  variety  of  pur- 
pofes — fome  political — fomc  comm.ercial — fome  religious 
— fome  literary — others  again  for  carrying  particular 
charities  into  eflecSl.  The  powers  of  each  depending  upon 
its  general  nature,  or  fpecific  end,  and  more  upon  the  par- 
ticular grant,  from  which  it  derives  its  ordination,  than 
from  the  general  provifions  of  law. 

Again,  among  the  Infinitude  of  corporations,  fomc  exllt 
by  prefcription,  and  fome  are  founded  in  written  charter?.. 
In  the  one  cafe,  they  are  governed  by  a  continued  feries 
of  ufage.  In  the  other  by  the  interpretation  of  the  lanrj;- 
uage  of  their  charters.  Amidft  the  cxtenfive  field  of  legal 
contention,  which  has  been  opened  upon  the  fubje6l  of 
corporate  bodies,  not  one  folitary  inflancc  can  be  found 
of  an  Englifh  corporation  claiming  a  right  of  fcrutiny,  par- 
allel to  that  which  has  been  cxercifed  by  our  Common 
CounciK  All  the  books  and  reporters  are  filent  upon  thai 
point.  From  that  filence  fome  have  inferred  that  it  has 
never  been  difputed  ;  upon  that  very  ground,  I  maintain 
it  has  never  been  exercifed — for  if  the  right  had  been  uni- 
vcrfally  admitted,  flill,  in  the  progrefs  of  fo  many  years, 
queftions  would  have  arifen  with  refpedl  to  the  manner  of 
its  exercife,  and  prefented  themfelvcs  to  ihe  court  of  Iving's 
Bench,  in  the  shape  of  abufc?. 


2fO 

Cin  it  then  be  pofFible,  that  a  right  fo  extraordinary  in  its 
nature,  fo  dangerous  in  its  confequences,  fo  repugnant  to 
the  principles  of  our  government — an  authority  which  ftrikes 
at  the  very  root  of  the  elective  franchife  and  places  the  pco«? 
pie  completely  beneath  the  arbitrary  controul  of  a  board  of 
aldermen  and  afliftants,  can  be  created  and  guaranteed  by 
the  common  law  of  the  land  ?  Is  a  power  fo  exorbitant  and 
gigantic  tobeexercifed  upon  the  moft  trivial  and  queftionablc 
ground?  Arc  all  our  bpalted  privileges  held  at  the  precarious 
mercy  of  a  Common  Council  I  and  all  the  inhabitants  of 
a  great,  enlightened  and  refpedTtable  city  reduced  to  abje^l 
flavery  by  a  little  handful  of  undiftinguiflied  citizens. 

There  is  ftill  a  remaining  view.  In  which  I  fliall  confides 
the  fubjetl.  I  produce  the  fenfe  of  the  legiflature  againft 
the  atrocious  and  unprincipled  ufurpation.  Even  before 
the  revolution,  an  acl  of  the  colony  was  pa  {Ted  for  the  re-t 
gulation  of  charter  elections.  Under  our  prefent  eftabhfh- 
ment  the  legillature  has  provided  a  flatute  mofl  exprefs- 
3y  apd  avowedly  for  that  purpofe.  Examine  the  title  ;  you 
fmd  it  to  be  "  an  a61:  to  regulate  the  eledion  of  charter 
officers  in  the  city  of  New-York."  Infpeft,  analyfe,  pon- 
der upon  its  contents;  you  perceive  it  to  comprehend 
every  fuitable  and  every  eflential  provifion. 

I  contend  that  by  this  acl  the  fenfe  of  the  legiflature  is. 
explicitly  declared,  and  that  it  follows  as  a  neceilary  con- 
clufion,  either  that  fuch  a  power  never  cxiftcd,  or  if  it  did 
obtain,  that  i  t  was  thereby  repealed  ;  the  intention  of  the 
legiflature  is  apparent  from  the  title  of  the  a£l,  and  from 
the  provifions  which  they  have  thought  proper  to  eflablifh, 
if  it  had  been  believed  that  the  authority  in  queftion  was 
vefted  in  the  corporation  jand  it  was  fafe  to  entrull  it  to  their 
hands.  The  legiflature  could  have  had  no  rational  induce- 
ment for  an  interference  upon  the  eccafion.  If  the  regulation 


21 


of  charter  declions  was  confidercd  as  the  peculiar  province 
of  the  Cominon  Council,  and  as  a  right  vefted  in  them  by 
the  charter,  why  was  a  folemn  and  deliberate  ftatute  pafTed 
exprefsly  and  exclufively  for  tliat  purpofe  ? 

Mod  exprefs  and  pofitive  language  could  not  have  more 
clearly  unfdMed  the  views  of  the  Icgifiature  upon  the  fub- 
jecfV,  than  their  very  atSt  of  intcrpofmg  upon  the  occafion. 

Upon  a  perufal  of  this  flatute  it  will  be  found  to  con- 
tain every  provifion  which  could  have  been  deemed  neccf- 
fary  for  the  regulation  of  charter  elections.  It  afcertains 
the  time  at  which  they  are  to  take  place.  It  dire£ls  the 
inode  of  conducing  them.  It  prefcribcs  the  ofRcer  who 
is  to  prefidc.  It  ellablifhcs  his  powers  and  his  duties.  It 
declares  the  quuliilcations  to  be  poneiTed  by  the  electors* 
It  renders  tliem  eflentially  variant  from  the  provifions  con- 
tained in  the  charter.  It  adopts  a  mode  for  deciding  upoa 
thofe  qualificaticn  s;  and  it  even  directs  the  particular 
duties  of  the  Common  Council  upon  the  occafion. 

Before  the  efiacllcn  of  this  ftatute,  our  cky  cleclions  took 
place  entirely  under  the  operation  of  the  charter ;  but  fince 
that  period  they  are  governed  by  the  particular  directions  of 
this  law.  A  remarkable  exprefFion  of  the  legiflature  forci- 
bly indicative  of  their  intentions  upon  this  point,  appears  to. 
have  been  overlooked.  The  ftatute  under  contemplation 
|)rovides  that  if  the  Common  Council  fliall  not  appoint  in- 
fpectors,  or  if  thofe  infpeclors  ftiall  neglect  the  performance 
of  their  duties,  that  then,  and  then  only,  cleclions Jljall  he  had 
a:cordhig  to  the  dire^liotis  in  the  chart er^  any  thing  in  that  acf 
contained  to  the  contrary  notiuiihjlanding.  Is  it  not  therefore 
manifeft,  that  the  legiflature  muft  have  cenfidered  that  law 
as  the  only  bafis  upon  which  the  elcdtion  of  charter  officers 
was  thereafter  to  be  founded  ?  Upon  no  contrary  do£trinc 
is  it  pollible  to  account  for  their  cautious  folicitude  in 


prcnding  againfl;  thofe  two  particular  ncgleds  of  duty. 
By  that  ftatute  they  eftablifn  a  general  rule — they  render 
thofe  peculiar  cafes  an  exception  to  that  rule.  Why  did 
they  fo  carefully  provide  that  in  thofe  folitary  infbanccs, 
clcftions  fhould  take  place  in  purfuance  of  the  charter,  if 
in  every]  other  refpe£l,  they  did  not  view  the  charter  as 
giving  way  to  the  ftatute  ? 

Let  us  now  beftow  fome  particular  attention  upon  the 
a£i,and  examine  the  regulations  it  has  eftablifhed. 

In  the  firfl  place  it  authorizes  and  dire£ls  the  G5ramon: 
Council  within  certain  limits  of  time  to  Jix  upon  the  places 
ef  eleBioHy  it  alfo  diretts  them  to  appoint  infpe^tors,  and 
prefcribes  their  requifite  qualifications— here  then  we  find 
the  Icgiflaturc  exercifing  their  controul  over  the  Common 
Council,  and  it  is  apparent  that  this  body  with  refpect  tor 
Elections,  mull  a(St  in  Juhjerviency  to  the  law. 

In  the  fccond  place,  it  prefcribes  the  powers  and  duties 
of  infpcctors;  and  here  letmeimprefs  the  obfervation,  that 
t-hofe  oiEcers  are  directed  and  empowered  topreftde  at  elec- 
tions, as  well  as  to  make  returns.  The  expreflion  of  the 
a£l:  with  rcfpe£l  to  the  appointment  of  this  officer  are 
wortliy  of  clofe  and  particular  attention.  A  fit  and  dif- 
creet  perfon  (fays  the  law)  for  each  refpe£Hve  "ward,  being 
a  freeholder  there  or  a  fceeman  of  the  faid  city,  fhall  be 
appointed  to  prejlde  at,  and  be  the  infpe£lor  or  returniog 
officer,  to  fee  that  the  refpe61;ive  elec^^ions  be  fairly  con- 
du£led  and  had.  Here,  then,  it  is  apparent  that  the  adb 
has  prefcribed  for  fuch  officer  a  twofold  divifion  of  pow- 
ers and  of  duties,  each  feparate  in  its  nature,  and  clearly 
diftinguifnable  from  the  other.  The  grammatical  conftruc- 
tion  as  well  as  the  obvious  import  of  the  fentence  is  too 
apparent  to  require  argumentative  dedu£tion,  the  conj  unc- 
tion et  (and)  placed  between  its  branches  precifely  indi- 


22 

fates  their  feparatc  cxiflencc,  and  gives  to  each  its  fpecJ- 
fied  operation.  The  pcrfon  fo  appointed  is  to  psesid* 
at  elections,  and  he  is  also  to  be  the  infpcdtor  ox  rctura- 
ing  officer. 

He  is  to  prefidc  at,  and  to  fee  that  the  refpective  ckAi- 
ons  are  fairly  had  and  conducted.  The  term  prcfide,  de- 
rived from  the  latin  prasideo  fignifies  being  fet,  or  having 
authority  over.  When  it  is  diredlcd  that  an  individual  i* 
to  prefidewithrefpecl  to  afubjetSt  matter,  the  true  meaning 
of  the  exprcflion  is,  that  he  pofTefTes  authority  over  it  it  is 
implied  that  he  ftiall  govern  anxl  dire£l,  agreeable  to  the 
Ipirit  and  intent  of  the  power  from  whence  he  derives  hi'> 
ordination.  He  who  is  to  prefide,  and  fee  that  electioni. 
are  fairly  conducted,  is  rendered  the  principal  ofScerj 
with  refpe£t  to  thofe  ele6lions. 

I  place  peculiar  ftrefs  upon  this  argument,  becaufe  I  am 
convinced  it  is  conclufive,  the  law  has  placed  a  very  im- 
portant power  in  the  hands  of  this  officer.  It  has  dire6t- 
cd  him  to  prefide  at,  and  fee  that  eled^ions  are  fairly  and 
properly  conducted,  and  it  looks  to  him,  and  to  hint 
alone  for  the  faithful  performance  of  thofe  duties.  The 
law  was  made  for  the  fole  purpofc  of  regulating  the  ele£li- 
on  of  charter  officers.  Its  exclufive  intention  was  to  place 
thofe  elections  upon  a  wife,  fecuxe  and  f^lutary  foundatioK. 
It  was  neceflary  that  this  prefidential  power  fhould  be 
intrufted  fomewliere.  It  was  indifpenfible  that  fome  in- 
dividual fliould  be  appointed  to  prevent  thofe  who  were, 
not  legally  qualified  from  being  admitted  as  eledtors. 
It  was  politic  that  fuch  power  fliould  be  depofited  in  hand> 
the  leaft  likely  to  abufe  it.  Every  principle  of  public 
jufticc  and  policy  didlated  that  this  prcfiding  officer  fitting 
as  the  judge  of  clc6live  qualifications,  Ihould  be  difinter- 
elted  and  impartial.  It  was  eafy  to  perceive  that  the  mtr^- 


bers  of  a  corporation,  frequently  c-andidates  themfclves, 
were  not  difpaffionate  judges.  It  mufi:  have  been  perceiv- 
ed that  fuch  authority  placed  in  their  hand  was  dangerous, 
and  liable  to  irrefiftible  temptations.  It  was  unfpeakably 
evident  that  armed  with  fuch  powers,  they  could  at  plea- 
fure  defeat  every  elediion,  and  render  their  offices  of  unli- 
■  mited  duration.  Hence,  then,  it  was  neceflary  that  the  le- 
giflature ihould  interpofe  its  aid,  and  provide  fome  fuit- 
able  guard  to  preferve  the  privileges  of  the  citizen. 

Thirdly.  The  law  prefcribes  the  qualifications  of  elect- 
ors, and  directs  the  mode  of  determining  them.  With  ref- 
pe£t  to  the  firft  point,  as  before  obferved,  it  is  variant 
from  the  charter  by  reftriCling  the  right  of  voting  to  a  free- 
hold  of  twenty  pounds.  The  particular  manner  in  which 
the  zdi  is  drawn,  its  embracing  every  qualification  and 
inftituting  a  complete  and  comprehenfive  fyftem,  is  alfo  a 
ftrong  argument  that  the  legiflature  intended  the  ftatute 
fiiould  fupercede  the  charter  with  refpe6l  to  eleClions. 

The  method  which  the  legiflature  has  adopted,  for 
deciding  upon  the  qualification  of  eleClors,  is  another 
ftrong  hnk  in  the  chain  of  argument,  to  prove,  that  they 
•intended  that  a61:  to  conftltute  the  only  inftrument  for  go- 
verning elections.  We  have  feen  the  high  importance  of 
the  office  of  infpector,  its  cxtenfive  duties,  and  the  confi- 
dence repofed  in  it  by  law.  In-  order  to  prevent  corrup- 
tion and  intrigue,  to  fupercede  the  exercife  of  an  arbitrary 
difcrction,  and  to  protect  the  right  of  eleCtors,  the  law 
has  interpofed  a  fingle  mode  of  trial,  the  one  moft  fuit- 
able  to  the  occafion,  and  perhaps  the  only  practicable 
method — That  is  the  oath  of  the  party,  in  the  words  a- 
dopted  by  the  law,  comprehending  every  requifite,  and 
which  is  to  be  adminiftered  by  the  prefiding  officer. — 
When  we  confider  the  inconveniences,  the  difficulties. 


25 

and  the  delays  of  every  other  mode-,  the"numbcrlefi  qucf^ 
tions  that  would  neceflarlly  arlfc ;  the  extreme  intricacy 
und  technical  nature  of  many  of  thofc  queftions  ;  the  time 
which  would  unavoidably  be  confumed  in  their  difcunion  ; 
the  production  of  title-deeds ;  the  expofure  of  eftates  ; 
the  examination  of  witncflcs ;  the  incompetency  of  every 
tribunal  except  the  regular  courts  of  juftice  ;  the  unwill- 
ingnefs  of  eledors  to  expof*,  themfelves  to  fo  much  trou- 
ble and  inconvenience  ;  that  it  would  render  ele6lions  an 
cndlefs  field  of  litigation  j — when  we  confider  the  abufes 
to  which  any  other  method  of  decifion  would  give  rife ; — 
when  we  reflect  upon  the  infuperable  difficulties  which 
would  attend  every  election  j~when  we  contemplate  the 
highly  dangerous  powers  which  would  refult  from  this  ex- 
traordinary right  of  fcrutiny^ — and,  when  we  perceive 
that  the  prefent  conftruCtion  of  the  a£t,  places  the  dcd^ions 
of  our  city  magiftrates  upon  prccifely  the  fame  footing  with 
thofe  of  the  officers  of  ftate — the  conclufibn  is  unavoidable, 
that  fuch  interpretation  is  juft — That  the  decifion  of  the  in- 
fpe6lor,  in  his  prefidentral  capacity,  and  his  records,  tranf- 
mitted  in  the  chara6ter  of  returning  officer,  is  final  and 
conclufive  with  refpedl  to  the  rights  of  the  party  eledted. 

Should  we  refort  to  arguments  of  convenience  or  expe- 
diency, the  fubje6l  would  become  inexhauflible.  Many 
of  thofe  arguments  are  forcibly  flated  in  the  proteftof  the 
minority  of  the  Common  Council,  which  is  incor- 
I^orated  in  the  pages  of  this  work.  To  that  protefh 
I  therefore  take  the  liberty  gf  referring  the  reader. 

Before  I  conclude  the  prefent  number,  permit  mc  to 
enforce  the  danger  which  would  refult  from  allowin^j 
the  corporation  to  alTume  the  right  of  deciding  the  value 
of  freeholds.  Between  certain  limits  that  value  is  indefi- 
nite.   From  tJic  unalterable  nature  of  tilings,  it  muft  io(b 

D 


2€ 

etitirely  m  conje^bural  opinion.  It  is  not  the  fubje£l'  of 
definite  evidence,  nor  is  it  fufceptible  of  precife  judiciai 
determination.  Such  a  right,  if  exercifed,  would  be  Hablc 
to  perpetual  abufe.  Corrupt,  fraudulent,  and  partial  de* 
oiions  would  be  mad^  without  the  means  of  redrefs,  with- 
out the  poffibility  of  appeal.-^I  purchafe  a  freehold  for 
the  price  of  twenty  pounds.  The  contract  is  an  actual 
one.  The  confideration  was  fairly  paid.  The  payment 
<?f  fuch  confideration  is  conclufive  evidence  of  value — 
it  is  the  very  flrongeft  teftimony  of  which  the  cafe  is  fuf- 
ceptible. It  would  be  apparent,  that  the  value  of  my 
freehold  was  not  £,  looo.  It  would  be  equally  apparent, 
that  it  was  more  than  twenty  fhillings.  But  between  fif- 
teen and  thirty  pounds,  the  line  of  value  would  be  fluctu- 
ating, indiftinct,  and  evanefceot.  Some  men  would  com- 
pute it  at  one  price,  other.j  at  a  different.  Who  is  then 
to  decide  that  invifible  point  of  eftimation  between  the 
hair- breadth  of  a  fra6i:ion,  whether  it  is  worth  the  precife 
fum  of  twenty  pounds,  entitling  me  to  a  vote,  or  the  infi- 
nitefimal  particle  of  an  atom  lefs  than  fuch  fum,  depriving 
me  of  the  right  ?  Shall  the  corporation  be  permitted  to 
tell,  me — "  We,  Sir,  are  the  judges.  We  are  determined 
to  eftimate  your  property  at  the  fum  of  forty-nine  dollars 
and  niaety-nine  cents.  It  wants  a  fingle  dime,  or  cent, 
oT  the  value  to  entitle  you  to  the  privileges  of  a  citizen. 
It  is  againft  our  interefl  to  admit  your  vote.  It  would 
deftroy  the  feat  of  one  of  our  members.  It  would  banifh 
one  of  our  favourite  inftruments  of  corruption.  We  arc 
the  judges.  Our  determination  is  conclufive.  We  arc 
fuperior  to  the  idle  tales  of  witnelTes.  It  matters  nothing 
to  us  what  money  you  have  paid.  We  will  not  accept 
your  oath,  though  the  law  has  direfted  the  infpector  to 
take  it.  We  determine  your  property  to  be  worth  as  littlc- 
as  we  pleafe.    We  repeat  U — our  decifion  is  conclufive. 


'^7 

,  You  have  no  appc^il,  no  redrefs.    The  Supreme  Gtmrt 

.  cannot  direct  a  jury,  nor  fummons  witnefles,  to  eftimate 
this  nice  and  delicate  queftioii.    We  alone  pofTcfo  tlu^. 
-  ftandard  of  abftract  trutli  and  mathematical  exactitude  ?" 

Minute  philosophers,  ■who  nicely  see 

Til' entrails  of  a  gnat,  dijsect  a  flea  ; 

Survey  the  world  with  mioroscbpic  ey^, 

And  to  an  elephant  convert  a  fly  j 

McTisure  an  atom  by  precisio  n*s  l^aws, 

Balance  the  diff" rence  of  a  pair  of  straws; 

Pursue  the  fibres  of  a  gra/u  of  sand. 
Tell  how  much  gold  will  buy  each  inch  of  land  ; 
Divide  and  subdivide  each  single  hair, 
,With  fairy  magic  gage  a  point  in  air. 
Kewton!  look  down  from  the  empyrean  skies, 
Confess  to  i^hilip  thou  wert  not  so  wise. 
Great  Proclus  !  Euclid!  from  your  thrones  Ijchold 
What  wonders  rise — what  sylph  like  pow'rs  unfold! 
Oh,  sages!  skill'd  in  every  occult  lore. 
Imbued  with  science  never  taught  before. 
Hail!  sapient  owls!  who  know  no  mental  night. 
And  loftier  Charon*,  heir  of  second  sight! 
Sages  renown'd  !  procsed  with  care  to  scan, 
By  geometric  rules,  the  Rights  ol  Man  ! 
Explore  each  distant  star  through  fancy's  tube; 
Fraction  from  fraction  draw,  and  cube  from  cube; 
Balance  my  freedom  with  aerial  scales. 
Pronounce,  from  mystic  spells,  what  candidate  prevails! 

I  afk  thefe  very  intelligent  and  fagacious  gentlemen — I 
enquire  of  them  jointly  and  individually,  from  what  char- 
ter— from  what  law — from  what  extraordinary  procefs  of 
logical  deduction,  did  you  derive  the  fingular  privilege  and 
miraculous  faculty  of  analyfmg,  to  a  fraction,  the  prccife 
value  of  eflates  ?  Surely  not  from  the  charter  of  the  citv. 
That  inftrument  did  not  require  any  fpecific  value  ;  it  could 

•  The  waters  of  the  Wallabout  might,  in  poetic  language,  be  considiT- 
cd  as  the  Styxj  and  th«  Prisoii-ship  the  bark  ia  which  Charon  fe  ricd  ll.o 
siiadss  of  his  rebel  victims. 


^8 


jaot  grant  you  a  power  which  it  did  not  contemplate — furcly 
not  from  the  ftatute  for  regulating  charter  eleQions^-that  a£i 
cftablifhed  a  very  different  provifion — it  intrufted  the  cafe 
to  the  infpe£i:ors  and  required  them  to  receive  the  oath  o£ 
the  electors  as  the  criterion  to  determine  it.  In  whatever- 
view  we  confider  the  fubjedl  5  the  more  it  is  fubmitted  to 
reflection,  the  ftronger  is  our  conviction  that  the  majority 
of  the  Common  Council  have  violently  exercifed  a  power 
to  which  they  are  not  entitled — An  authority  which  they 
have  neither  the  candour  to  difavow,the  arguments  to  vin- 
dicate, nor  the  ingenuity  to  defend. 

LYSANBER- 


No.  IV. 

HISTORY  OF  THE  SCRUTINY  IN  THE 
FIFTH  WARD. 

■   ^ —        I  Force 

Usurps  the  throjie  of  justice." 

AiCEWSlDI, 


Inflexibly  determined  upon  the  accom- 
plifhnnent  of  their  prcdcflined  purpofe,  the  majority  of 
the  Common  Council  were  obfliinate  and  inexorable  ;  deaf 
to  argument  and  callous  to  the  impulfe  of  reflexion,  they 
rufhed  precipitately  into  aftion  without  confidering  the  in- 
juflice  or  the  impolicy  of  their  conduft.  I  would  willingly 
attribute  their  proceedings  to  the  errors  of  the  underftand- 
ing,  if  they  had  not  furnifhed  too  many  fatal  evidences  of 
depravity  in  the  paflions. 

In  becoming  their  hiflorlan  I  hare  undertaken  an  irk- 
fome  task.  We  perufe  the  annals  of  the  Csefar's  with  in- 
ftrudlion,  but  alas  !  our  advantages  are  attended  with 
dilTatisfa^tion  and  alloyed  by  continual  difgufl.  We  na- 
turally fhrink  from  beholding  the  frailties  and  vices  of  men, 
and  pant  for  an  opportunity  of  contemplating  the  brigh-p 
tcr  afpedl  of  moral  nature.  Yet  it  is  neceffary  that  truth 
fhould  extend  her  mirror  and  cxpofe  the  deformities  of 
individuals  who  have  ventured  to  facrifice  the  rights  and 
liberties  of  thdr  country. 


The  prefent  and  fucceeding  number  fliall  be  dedicated 
to  a  detail  of  the  fcrutiny.  Pains  have  been  taken  to  col- 
every  material  circumftance.  A  tranfa£lion  fo  im- 
portant to  the  interefts  of  the  pubUc  fhould  be  univerfally 
and  corre£liy  underflood.  Confining  myfelf  in  this  num- 
ber to  the  proceedings  with  refpe6t  to  the  fifth  ward,  it 
fhali  be  rendered  as  concife  as  may  be  warranted  by  perfpi- 
cuity. 

About  a  month  before  the  eIe£lion,  and  fufficient  to  em- 
brace the  period  required  by  law,  Jofhua  Barker,  efq.  and 
thirty  eight  other  citizens  purchafed  of  Mr.  Abraham  Blood- 
good,  a  lot  of  ground  and  tenement  in  Frankfort-ftreet, 
for  the  price  of  two  thoufand  dollars :  the  purchafe  was 
fair  and  abfolutc  and  the  confideration  money  was  actually 
paid.  There  was  not  the  fliadow  of  an  agreement,  either 
exprefied  or  implied,  to  re-convey  the  property.  On  the 
contrary,  it  became  to  every  intent  the  eftate  of  the  pur- 
chafers.  Taking  the  price  which  was  afbually  paid  as  the 
bafis  of  valuation ;  every  proprietor  was  rendered  a  freehold- 
er to  the  amount  of  fifty  one  dollars  and  upwards. 

James  Roofevelt  and  John  P.  Ritter,  efqrs.  were  the 
candidates  on  the  federal  (or,  as  I  fhall  hereafter  denomi- 
nate it,  the  tory)  fide.  Philip  I.  Arcularius  and  James 
Drake  were  fupported  by  the  republicans — at  the  clofe  of 
the  Poll,  it  appeared  that  Mr.  Arcularius  had  a  majority  of 
6  as  Alderman  and  Mr.  Drake,  a  majority  of  8  as  afliftant 
,  for  the  fifth  ward.  A  return  to  this  elFed  was  accordingly 
made  by  the  Infpeclor. 

On  the  1 8th  of  November,  (the  day  fucceeding  the  c- 
ieclion)  letters  demanding  a  fcrutiny  were  received  from 
MefTrs.  J.  Roofevelt  and  Ritter.  This  demand  was  readily 
complied  with  by  the  Common  Council,  and  Thurfday,. 


the  26th  of  November,  appointed  as  the  period  for  com-* 
mencing  tlic  extraordinary  drama. 

The  period  between  that  day  and  the  4th  of  December 
was  principally  occupied  in  the  examination  of  the  elect* 
ors  whofe  fuffrages  were  challenged,  and  of  witneflcs  with 
refpect  to  their  qualifications^ 

In  dating  the  material  cafes  which  became  prefented  for 
decifion,  I  fliall  commence  with  the  votes  in  favour  of  Mr. 
Arcularius,  which  were  challenged  by  Mr.  J.  Roofevelt » 
and  afterwards  ftate  the  fitiiation  of  the  voters  in  favour 
of  the  latter,  who  were  objected  to  on  the  part  of  the 
former. 

The  proceedings  were  commenced  by  a  general  challenge 
againft  the  votes  of  the  proprietors  of  the  lot  and  tenement 
in  Frankfort-ftreet. 

In  fupportof  fuch  general  challenge,  five  diftinct  grounds 
of  exception  appeared  to  be  taken. 

I  ft.  That  the  title  deed  was  not  executed  on  the  day- 
it  purported  to  bear  date. 

2d.  That  the  confideration  money  had  not  actually  been- 
paid. 

3d.  That  the  conveyance  was  not  abfelute  and  bona 
fide,  but  that  fome  fecret  truft  exifted  to  rcconvcy 
to  the  grantor. 

4th.  That  the  property  was  not  worth  two  thoufand 
dollaps  (the  confideration  money  paid),  and  wab>. 
therefore,  infufiicient  to  entitle  the  feveral  grantees 
to  a  vote. 

And,  laftly,  That  the  fame  being  a  purchafe  made  for 
the  purpofc  of  voting  at  an  election,  was  contrary  to 
law. 


With  refpe£l  to  the  firft,  fecond,  and  third  exceptTohf^ 
there  could  not  remain  the  veftige  of  a  doubt.  Evidence 
was  produced  to  demonftrate  the  reaUty  of  the  purchafe^ 
and  the  bma  fide  payment  of  the  confideratiori. 

it  v/as  frank iy  admitted,  that  the  purchafe  was  made  to 
entitle  the  proprietors  to  the  elective  franchife.  It  was 
contended,  that  fuch  purchafe  was  in  purfuit  of  a  legal 
and  laudable  purpofe ;  that  no  ftatute  had  been  pafled  to 
prohibit  it;  and  that  it  inverted  the  proprietors  with 
rights  of  which  no  power  inferior  to  that  of  the  legiflaturfr 
could  deprive  them. 

It  only  remained  to  eftablifh  the  value  of  tlie  property. 

On  the  one  hand,  Mr.  Daniel  Hitchcock  depofed,  that 
he  was  acquainted  with  the  property.  That  he  was,  of 
had  been,  an  afleflbr  under  the  government  of  the  United 
States.  That,  in  his  aflefTment  book,  it  ftands  rated  at  a 
thoufand  dollars.  That  he  thought  he  might  be  a  toler- 
able judge  of  its  value.  That,  at  the  extent,  he  believect 
it  not  worth  more  than  fix  hundred  pounds. 

Upon  his  crofs-examination,  he  admitted,  that  he  had. 
BOt  made  any  accurate  view  fmce  the  ele6tion.  That  he 
had  never  been  in  the  upper  part,  or  ftories,  of  the  build- 
ing. And,  that  it  is  cuftomary  in  afleffments  to  under- 
value property. 

Mr.  Shimeal  teftified,  that  he  knew  the  lot  and  tene- 
ment. That  he  was  not  acquahited  with  its  value.  That 
lots  will  fell  higher  at  one  time  than  another.  That  he 
^Ivould  accept  of  2200  dollars  for  a  full  lot.  That  one 
lot,  in  the  neighbourhood,  lately  fold  for  2000  dollars. 
That  it  was  impolBble  for  him  to  eflimate  the  value  of  any 
]©t.    When  aiked  what  price  he  would  give  for  the  lot  in? 


S3 


queftion,  he  very  flirewdly  replied  he  could  not  fay  but  if 
he  wanted  it  then  he  could  tell  what  he  would  give  for  it*. 

On  the  other  hand,  Mr.  Peter  Bonnet,  Mr.  Forbes,  Mr. 
A.  Bloodgood,  and  Mr.  I.  Bedient  were  introduced  as  wit- 
nefles  to  eftablifh  the  value  of  the  lot  and  tenement. 

Mr.  Bonnet  declared  that  he  lived  in  the  neighbourhood 
— that  he  is  a  competent  judge  of  the  value  of  property  as 
far  as  fuch  value  is  a  fubjedl  of  eftimation — that  he  was 
well  acquainted  with  the  property  in  qucftion,  and  that 
were  it  his,  he  would  not  take  two  thoufand  dollars  for  it. 

Mr.  Forbes  mentioned  his  having  a  lot  in  the  neighbour- 
hood, which  he  eftimated  at  1900  dollars,  and  that  he  would 
not  take  a  lefs  fum  for  it — that  the  property  of  the  voters 
was  really  worth  2000  dollars. 

Mr.  Bloodgood  teftified  his  firm  belief  that  the  property 
was  really  worth  the  confideration  paid  for  it. 

Mr.  Bedient  ftated  his  being  acquainted  with  the  lot  and 
tenement  in  queftion  :  it  faces  a  ftreet ;  that  fome  time  in 
March  laft,  he  talked  aliout  purchafing  it.  Mr.  Bloodgood 
then  afked  between  eight  hundred  and  nine  hundred 
pounds  for  it.  He  did  not  think  it  over  rated  at  that  time, 
and  retains  the  fame  opinion  ftilL 

*  The  testimony  of  this  Jionest  German  is  a  complete  l  urlesr;ue  upon 
the  procei-dings  of  the  Common  Council.  Wonderful  that  ihey  should 
jnot  know  tliat  lots  of  ground  will  sell  higher  atone  lime  tlian'ano'.her, 
until  they  received  the  information  from  the  mouth  of  a  witness.  Thij 
uncultivated  man  discovered  more  saiatily  than  any  of  them.  It  \ra» 
impossible  for  him  to  ascertain  the  value  rf  any  lot — he  wa»  conscious, 
how  much  the  ideas  ef  value  rest  in  mere  conjecture — he  knew  how  mucb 

they   depended  upon  situation   and  cin  uni^tances  that  suph  oslima- 

iion  ttust  greatly  he  governed  by  the  purposes  for  which  it  is  wanted,  and 
th«  uses  to  which  ii  ii  to  be  applied— that  j-ropeity  is  more  valuable,  becausa 
more  serviccdblc  to  one  man  than  auoih^r — that  there  is  no  grneral stand- 
ard by  which  il  can  be  measured  with  u> alhtmatical  exaciilutc — he  rouhl 
not  tell  what  he  could  jjivefor  articles  he  did  not  want — a  jjraiu  of  corn 
is  more  valuable  to  acock,  than  an  ingot  of  gold — When  Mr.  Sl.iujcal 
■wanted  properly,  then  he  could  tell  what  he  would  give  for  il — and  s-» 
«ouId  tUe  wiisatres  yf  our  Common  Cc^ucil. 

£ 


34 


Such  were  the  ohje^ilons,  and  fueh  the  teftlmony,  with 
refpect  to  the  property  purchafed  in  the  fifth  ward.  I 
fliall  defer  my  obfervations  upon  the  fubjedt,  until  I  havQ 
ftated  the  particulars  of  the  other  cafes. 

The  remaining  voters  in  favor  of  Mr.  Arcalarius,  with 
refpe^l  to  whom  particular  exceptions  were  taken,  were 
Edward  Sands,  James  K.  Delaplaine,  Stephen  Latham, 
Henry  B.  Earl,  Thomas  Wilfon,  Benjamin  A.  Egbert,  and 
'Gurdon  S.  Mumford. 

Edward  Sands  had  agreed  to  purchafe  a  lot  of  grouncj. 
He  produced  a  written  contra£t,  with  an  unexecuted  deed 
annexed.  He  had  paid  no  part  of  the  actual  confidera-^ 
tion,  but  he  had  paid  upwards  of  20  as  intereft  upon 
it.  He  was  in  pofTeffion  of  the  property  when  he  voted, 
had  made  improvements,  and  ftated  it  to  have  aiifenmorc 
than  ^.  20  in  value  fmce  the  purchafe.  Under  thefc  cir- 
cumflances  he  polTefled  an  equitable  eftate. 

Mr.  Delaplaine  had  been  poflTelTed  of  a  confidcrable  free- 
hold 5  but,  fome  time  ago,  intending  to  leave  the  ftate^ 
he  executed  a  conveyance  to  Gilbert  Everingham,  and  alfo 
fuffered  a  judgment  to  be  entered  againft  him,  in  favor  of 
Everingham,  for  three  thoufand  dollars.  An  affirmation 
of  Mr.  Everingham  was  produced,  ftating,  that  the  only 
purpofe  of  fuch  conveyance  and  judgment  was  to  fecure 
about  500  dollars  due  to  him  from  Delaplaine.  That  fuch 
was  the  agreement  when  the  conveyance  was  executed, 
and,  that,  upon  the  payment  of  this  fum,  he  is  bound  to 
deliver  to  Mr.  Delaplaine  all  vouchers  refpefting  the  pro« 
pcrty.  The  judgment  was  for  the  fame  confideration,  and 
the  value  of  the  property,  beyond  the  incumbrance,  fufii- 
cient  to  entitle  the  holder  to  a  vote  *. 


*  Upon  a  di-risigm  wiV>  refpa^t  I0  th«  T(»t«  ©f  Mr.  D«laplaine,  %  majoiity  . 


35 

Mr.  Latham's  mother  pofTclfcs  an  eftatc  for  life.  He 
has  a  vcfled  remainder  in  fee. 

The  mother  of  Mr.  Earl,  during  her  coverture,  convey- 
ed a  freehold  to  him — the  father  did  not  join  in  the  con- 
veyance. It  was  executed  and  acknowledged  by  the  mo- 
ther, but  not  in  the  manner  prefcribcd  by  law  for  the  con*- 
vcyances  of  married  women.  Morris  Earl,  the  father, 
fome  time  afterwards  agreed  to  the  ODnveyance,  and  him- 
felf  executed  another.  Thofe  conveyances  were  made  fiK 
or  feven  years  fmce.  Mr.  Earl,  the  voter,  has  had  the  pof- 
feflion  under  them — has  made  leafes  of  the  property,  and 
is  in  the  pernancy  of  the  profits.  Morris  Earl  has  been  dead 
two  or  three  years,  and  his  widow  has  never  interfered 
with  the  pofleffion  of  her  fon.  • 

m-erc  against  it,  as  follows  : — In.favour  cf  the  vote,  iht  Recorder,  AHer- 
men  Barker,  Miutliornc,  Post,  Messrs.  Gilbert  and  V^rveeieu  ; — Agairist 
it,  Aldermen  Strong,  Coles,  Lenox,  Boseit,  Messicur*  Biaiher,  Tea  Eytk, 
Nitchie  aad  Carmer. 

*  I  shall  forbear  advancing  a  legal  opinion  upon  the  Totc  of  Mr.  Earl, 
jior  do  I  hesitate  to  admit  the  principle  that  the  conveyauces  of  leme  co- 
verts, unless  executed  in  the  manner  prescribed  by  law,  are  void.  Yet 
there  may  be  circumstances  alter  coverture  which  amount  to  a  re-del irery 
cf  the  deed  and  thereby  confirm  and  establish  it. 

Mr,  Earl's  remaining  in  possession  and  receiving  the  rents,  coupled  witli 
his  mother's  acquiescence  upward*  of  tvo  years  after  ihc  death  ol  herhus- 
band,  are  features  in  his  case  which  render  it  peculiarlv  strong. 

Althougli  lam  not  prepared  to  advanse  the  position  tliat  those  circum- 
stances would  amount  in  law  to  a  constructive  re-dclivery  of  the  deed  ^ 
still  I  think  that  ii  presents  an  important  qucstiou  which  ought  not  to  have 
been  hastily  decided  at  the  spur  of  tlie  ri"i{)ment,  witiiout  consideration: 
particularly  when  the  law  characters  of  the  board  requested  an  opportunity 
to  consult  authorities  upon  the  subjett. 

Tlie  case  of  Gotdright  ex.dem.  Carter ^  vs.  Strcjihan  and  others,  iu  Co^uper^ 
JO  1 .  presents  a  leading  decision  upon  this  point. 

Mr.  and  Mrs.  Carterduring  their  cohabitation  mortgaged  rcrtain  proper- 
ty to  whicli  the  latter  became  entitled.  The  instrument  was  not  executed 
according  to  the  formalities  prescribed  bylaw  to  be  oiwervcd  in  tliC  con- 
veyances ot  feme  coverts.  But  Mrs.  Carter  after  tiie  death  af  her  husband 
subscribed  two  papers,  one  Surrendering  the  posses»ion  of  the  house  to  the 
executors  of  the  mortgagee,  and  the  other  directing  the  tenant  to  attorn  to 
those  executors. 

It  is  plain,  that  neither  of  those  lubstquent  acts  could  imount  to  a  con- 
vey ance;  unL&ss  predicated  upon  the  original,  though,    informal  jrant. 
Lord  Manslield,  in  delivtriug  the  opiuiou  of  tiie  court  •ilablished  iwor 


3§ 


Thomas  Wilfon  being  pofTefTed  of  real  property,  by  a 
conveyance  made  in  1 795,  granted  the  fame  to  Lincola 
and  Bifhop,  their  heirs  and  alTigns — to  the  ufe  of  his  wife 
during  her  life,  and  of  his  children  afterwards.  So  that 
neither  the  voter  or  any  future  hufband  (hould  intermeddle 
with  the  property,  or  controul  the  v/ife's  eftate.  The  de- 
cinon  againfl  the  vote  of  Mr.  Wilfon,  was  unanimous. 

Mr.  Egbert's  partner  (Mr.  Ward)  obtained  a  lot  of  ground, 
and  contracted  to  fell  a  moiety  to  him.  Mr.  Egbert  paid 
500  dollars  towards  improving  the  lot,  but  no  part  of  the 
actual  confi deration.  Mr.  Ward  confiders  him  as  the  own- 
er of  a  moiety,  and  that  he  has  a  right  to  retain  the  price  of 
it  upon  the  fettlement  of  their  partnerfhip  accounts.  Mr. 
Egbert's  was  therefore  a  tni/}  eftate^  the  decifion  againft 
his  vote  was  alfo  unanimous, 

Mr.  Mumford  was  one  of  the  grantees  of  the  property 
in  Frankfort -ft reet,  independent  of  the  general  obje6tions 
with  regard  to  that  tranfaClion.  It  was  alfo  objeCled  a- 
gainil  his  vote,  that  a  judgment  of  non  profs  upon  a  writ 
of  error,  for  230  dollars  and  99  cents,  in  favor  of  Hallett 
and  Bowne,  ftands  entered  againft  him  and  David  Mum- 
ford  jointly,  of  the  term  of  July,  1800. 

To  combat  this  objection  an  affidavit  of  Mr.  Mumford, 
was  produced  ftatiiig : 

I  ft.  That  the  above  freehold  is  of  the  value  of  50  dollars 
and  upv/ards. 

2.  That  he  is  feized  of  other  freehold  eftate  in  the  city, 
(but  not  in  the  ward)  to  the  amount  of  2000  dollars  and 

principles. — 1st.  That  such  conveyance  might  be  rendered  valid  by  are-, 
delivery  ;  and,  'Jd,  That  circumstances  may  amount  to  a  redelivery  \\\ 
law.  The  circumstances  in  that  case  were  decided  to  be  sufficient  lor  the 
purpose,  and  judgment  was  accordingly  given  lor  the  re])rvr£entatlves  of 
tile  mortgagee.  LYSAInDER, 


37 

upwards,  free  of  incumbrances,  URicfs  the  above  judgment 
is  to  be  confidered  as  fuch. 

3.  That  Hallettand  Bowne  obtained  a  judgment  agalnftr 
him  and  David  Mumford,  for  168  dollars  and  83  cents,  oji 
the  1 2th  of  April,  1798  ;  and  that  a  writ  of  error  vva« 
brought  thereon. 

4.  That  on  the  17th  of  May  1 798,  after  the  entry  of  the 
judgment  and  the  commencement  of  the  writ  of  error,  D, 
M.  and  himfelf  obtained  a  regular  difcharge  under  the  acb 
for  giving  relief  in  cafes  of  infolvency,  and  that  the  amount 
of  the  judgment  was  included  in  the  inventory  of  debts  ex- 
hibited by  them. 

Laftly,  that  fuch  judgment  was  rendered  agninft  thern 
after  their  difcharge,  for  a  pre-exiRing  demand,  from 
which  they  were  legally  exonerated.  Mr.  Mumford's  vote; 
was  alfo  upon  this  ground  rejected  *. 

We  now  proceed  to  the  votes  in  favor  of  Mr.  J.  Roofe- 
velt,  wliich  were  obje6i:ed  to  on  the  part  of  Mr.  Arcularius. 
Thefe  were  the  cafes  of  George  Furman,  Jonas  Minturn, 
Ebenezer  Leggett,  Jofeph  Leggett,  John,  George,  and 
Leonard  Minufe, Robert  M«Devmot,  T.  S.  Arden,  C.  Wal- 
ton, E.  Lyde,  jun.  and  Uzal  Tuttle.  The  four  lirft  were 
cafes  of  trull  *,  the  others,  except  Tuttle's  cafe^  were  upon 
eftates  of  remainder. 

Tlie  property  upon  which  Mr.  Furman  voted,  was  con- 
veyed to  his  mother,  to  hold  the  fame  to  her  ufe  in  trufl> 
&c.  for  him.    Mr.  Furman's  vote  was  admitted. 

By  the  conveyance  under  which  Mr.  Minturn  voted, 
he  was  alfo  a  ce^uy  que  trud.    His  vote  was  admitted,  f 

*  The  division  was  as  rolloT\s  : — In  favour  o/  the  vote,  the.  Recorder,. 
AlileriMcn  Barker  and  Minlliorne,  Mr.  Gilbert,  and  Mr.  Verveelcn  : — 
Against  it,  Aldcnnrn  Slron^,  Coles,  Lenox,  and  Po»t,  Messrs.  Brasher, 
liitchie,  anil 'i  en  Lyck. 

•f-  Division  upon  tht-  votes  of  Mr.  Furman  aud  Mr.  Minium  :— -In  tJitif 


Ebenczer  Lcggett  had  purchafed  property  of  the  cxectl* 
tors  of  Hildrcth,  for  iioo  pounds.  He  had  paid  500  dol- 
lars in  part  of  the  confideration  to  Mr.  Walton,  one  of  the 
executors.  He  faw  a  deed,  but  did  not  know  whether  it 
had  been  executed  or  not,  it  was  to  be  executed  by  the 
other  executor.  No  pofitive  agreement  was  made  with 
rcfpe£l  to  the  terms  of  payment,  and  nothing  had  been 
faid  about  a  mortgage.  Under  thefe  circumftances,  Mr. 
Lfggett  polTeiTed  an  equitable  intereft,  but  the  legal  eftate 
V  as  not  vefted  in  him  i  neverthelefs  his  vote  was  admitted* 

Jofeph  Leggett  was  in  pofleiTion  of  a  houfe  and  lot  of 
ground  which  he  has  occupied  6  or  7  years.  It  was  pur- 
chafed by  Thomas  Leggett,  with  the  money  of  Jofeph, 
but  the  title  deeds  were  taken  in  the  name  of  Thomas  Leg* 
gctt  as  grantee.  Whatever  remedy,  in  a  court  of  chancery, 
Jofeph  might  poflefs  to  enforce  a  conveyance  from  Thomas 
to  him,  the  legal  eftate  was  undeniably  in  the  latter.  Yet 
the  vote  of  Jofeph  Leggett  was  admitted. 

It  is  untieceflary  to  (late  the  particulars  of  the  titles  of 
the  three  Minufes,  Meflieurs  M*Dcrmot,  Arden,  Wal* 
ton  and  Lyde.  It  is  conceded  on  all  hands  that  they  were 
feverally  feized  of  vefted  freehold  remainders;  their  cafes 
were  parallel  to  that  of  Mr.  Latham.  Thofe  votes  wei* 
properly  rejedlcd  by  a  confiderable  majority. 

Uzal  Tuttle  was  in  town,  but  did  not  appear  to  eftablifli 
his  vote.  Ifaac  L.  Kip,  efquire,  appeared  as  a  witnefs  up- 
on the  occafion,  and  declared  that  he  had  been  employed 
by  the  voter  to  obtain  a  partition  of  his  property.  Mr. 

favor,  Aldermen  Celes,  Lenox,  Bogcrt,  and  Post,  Messrs.  Brasher,  Carmer, 
l^itchie,  andTtnEyck: — Against  them,  tlie  Recorder,  Aldermen  Bark- 
er, Minthorne,  and  Strong,  Messrs.  GTilbert,  and  Verveelen. 

*  In  favour  of  adiwitting  the  votes  of  the  Leggctts,  Aldermen  ColCj 
Strong,  Lenox,  Post,  and  Bogert,  Messrs.  Brasiier,  Ten  Eyck,  Carmer, 
and  Nitchie: — Against  their  admission,  the  Recorder;  Aldcijneo  Jiaiker, 
*nd  Minthorne,  Messrs.  Gilbert,  and  YerveekR. 


B9 

I?jip  faw  cither  an  original  will  or  a  probate  of  one  in  favcr 
of  the  voter  and  others ;  and  alfo  a  deed  to  the  tcftator. 
He  ftatcd  further,  that  an  ordv^r  for  a  partition  was  obtain- 
ed in  the  Mayor's  Court.  Tattle's  vote  vi^as  admitted  by 
a  majority  of  two. 

Sucli  is  a  fuccin«£l:  and  accurate  detail  of  the  cafes  of 
contelted  votes  in  that  ward.  Uponclofmg  the  teftimony, 
the  arguments  of  Mr.  J.  Roofevelt's  counfel,  were  prin-^ 
cipally  dirc£lcd  to  eftablifli  the  admlfTibility  of  fufiiragey 
upon  the  bafis  of  remainders  and  truft  eftatec. 

As  the  decifion  with  refpc^l  to  cftates  in  remainder  was 
correal.  Obfervations  upon  that  point,  are  altogether  un- 
necellary.  It  is  proper  that  fome  refle£lions  fhould  b^ 
made  upon  the  fubjedl  of  trufts. 

An  eftate  in  truft  is  entirely  the  creature  of  a  court  of 
equity,  and  diverted  of  every  property  of  a  legal  freehold.* 
It  is  a  right  to  receive  the  profits,  and  to  difpofe  of  the 
land  in  equity — properly  fpeaking,  it  is  an  equitable  title 
to  lands.  But  the  legal  eftate  f  is  vefted  in  the  truftec, 
and  even  if  he  conveys  it  to  another  without  notice  of  the 
truft,  the  ccftuy  que  truft,  or  party  poiTefling  the  equit- 
able intereft,  would  be  bound  by  his  z^.  If  the  truftec 
commits  felony,  the  lands  are  forfeited  by  the  Englifti  law, 
and  the  ceftuy  que  truft  muft  refort  to  his  remedy  in 
chancery  §.  If  a  truftee  deviles  all  his  eftates,  fuch  gen- 
eral devife  palTes  an  eftate,  of  which  he  was  but  truftee, 
and  the  ccftuy  que  truft  muft  again  apply  to  equity  for  re- 
drefs  againft  the  devifee  J.  No  conveyance  by  the  ccf- 
tuique  truft  can  work  a  forfeiture  of  the  legal  eftate  of  truf- 
tee y.  The  widow  of  the  ccftuy  que  truft  is  not  entitkd 
to  dower. *'*^    The  legal  eftate — every  legal  right,  privilege 


♦Sandert  177.  {S»nd«r»  m.  ^Idem  192.  IIU^-  y  Wen  SOI.  ♦♦'i  ilk  iC: 


4-0 


and  remedy  Is  in  tlie  truftee,  and  not  in  the  ceftuy  que 
truft.  The  mtereft  of  the  latter  is  no  where  recognifcd  or 
■perceived,  except  within  the  walls  of  a  court  of  equity. 

But  fo  precipitate  were  the  federal  gentlemen,  in  ruihing 
upon  an  inftant  decifion,  that  even  if  they  had  the  legal  abi- 
lity to  inveftigate  the  queftion,  they  did  not  allow  them- 
felves  an  hour  for  the  purpofe.  Incompetent  as  they  un- 
doubtedly were  to  an  accurate  examination  of  the  fubje£i:, 
•had  they  only  read  and  bellowed  the  refleflion  of  a  moment 
upon  the  a£l  for  regulating  our  charter  elections,  convic- 
tion  mull  have  flafhed  upon  their  minds, however  uninform- 
ed. Without  travelling  farther,  it  is  apparent  from  that 
llatute,  that  the  ele6live  franchife  is  rcpofed  in  the  truftee, 
and  not  in  the  ceftuy  que  truft.  A  claufe  in  that  very  a£l 
exprefsly  recognizes  the  right,  and  limits  its  operation : 
For,  it  is  thereby  declared,  that  the  truftee  for  an  infant,  or 
a  body  corporated,  {hall  not  be  qualified  to  vote.  Moft 
evidently  intimating,  that  every  other  truftee  is  intitled  to  a 
fufFrage. 

If  a  truftee  (and  it  may  be  neceffary  to  inform  the  ma- 
jority of  our  Common  Council,  that  the  truftee  is  the 
perfon  pofleilmg  the  legal  eftate).  If  the  truftee  did  not 
by  law  poflefs  the  right  to  vote,  do  thofe  very  learned  and 
fagacious  gentlemen  believe  that  the  kgiflature  of  this  ftatc 
would  have  been  fo  abfurdly  ignorant  as  to  pafs  a  folemn 
and  deliberate  ftatute  for  reftri£ting  the  exercife  of  a  right 
which  does  not  exift  at  all  ?  As  the  cafe  now  ftands,  the 
queftion  lies  between  the  Corporation  and  the  Legiflature. 
Certain  it  is,  that  they  are  at  variance  upon  the  fubjedt. 
One  or  other  of  thefe  bodies  has  readered  itfclf  ridiculous^ 

In  the  confufion  of  the  fubjecl,  the  Common  Council  is 
alfo  moft  directly  in  a  ftate  of  war  with  itfelfr  Whetlier 


41 

it  proceeded  from  accident  or  dcfign,  from  the  wanderingi 
of  honcft  ignorance,  or  the  back-fliding  of  fmilter  intention, 
it  is  apparent  that  tliey  made  inconfiftent  decifions  upon 
the  fame  fubjedl.  The  cafes  of  Sands  and  Egbert,  and 
perhaps  of  Delaplaine,  prefented  trufts  as  marked  anddif- 
tinguifhable  as  tliofe  of  Furman,  Mint  urn  and  the  Lcggettg. 
It  is  true  that  the  latter  had  paid  either  the  whole  or  a  part 
of  the  confideration  money.  Sands  had  paid  his  money 
in  tlie  form  of  intcreft,  and  Egbert  had  advanced  his  in  the 
ihapc  of  improvements  upon  the  property.  In  eitlier  cafe, 
the  contraQ:  had  been  partly  executed,  and  a  court  of  c- 
quity  would  equally  compel  a  fpecific  performance.  The 
true  queftions  were,  whether  the  parties  poflcfied  an  equit- 
able intercft,  and  whether  an  equitable  intereft  entitled 
its  proprietor  to  a  fufFrage.  Sands  and  Egbert  were  in 
poflefiion  as  well  as  the  others.  If  chancery  would  decree 
a  fpecific  execution  of  the  contradl  in  their  favor,  their 
Iruft  eftates  were  equal  in  degree  to  thofe  of  Furman,  Min- 
ium, and  the  Leggetts.  Mofl  wonderful,  that  gentlemen 
fo  extremely  blind  to  principle,  by  an  inftant  miracle  of  in- 
telligence, (hould  fuddenly  acquire  the  aftonifliing  acute- 
nefs  to  fallen  upon  a  dift.in6lion  without  a  difference. 

An  Involuntary  fmile  may  be  excited  by  the  weaknefs. 
Off  the  follies  of  individuals.  We  cannot  fupprefs  our  indig- 
nation upon  beholding  manifeft  depravity  and  injufticc. 
On  the  4th  of  December,  at  an  advanced  period  of  the  eve- 
ning, the  Common  Council,  from  the  open  court  room,  in 
the  City-Hall,  retired  from  the  obfervatlon  of  fpe(^ators  to 
the  private  recefles  of  their  cliamber.  No  fooner  had  they 
arrived  within  thofe  walls,  than  a  motion  was  made  for  an 
inftant  decifion.  In  vain  was  it  urged  by  the  mayor,  that 
the  queftions  were  difficult,  profefTional,  and  entitled  to  de- 
liberation.    Authorities  had  been  produced  by  counfd, 

■  F 


42 

whicli  he  had  not  an  opportunity  to  examine.  He  rcqueft- 
cd  time  to  infped  thofe  authorities,  and  offered  to  meet 
the  board  at  as  early  a  period  as  they  fhould  appoint.  Hrs 
efforts  to  produce  a  flate  of  difpaffionatc  deUberation,  were 
entirely  fruitlefs.  Warrried  with  the  object  in  view,  and 
eager  to  execute  their  predetermined  purpofe,  the  federal 
members  were  obftinate  and  inexorable.  Admitting  their 
want  of  information  upon  the  queftions  they  were  about  to 
decide — conftrained  to  acknowledge  their  incompetency. 
On  that  very  evening,  within  an  hour  after  the  arguments 
of  counfel,  without  debate,  without  confideration,  fup- 
prefTmg  difcuffion  and  filencing  the  voice  of  reafon,  did  they 
with  all  the  indecency  of  precipitation,  deprive  near  forty- 
freeholders  of  their  legal  rights  of  fuffrage,  and  banifh 
from  their  feats,  an  alderman  and  affiftant,  who  were  re- 
turned as  eletted  with  all  the  folemnitics  and  requifitcs 
prefcribed  by  hw  !  !  ! 

Upon  the  memorable  queflion  with  refpe£l  to  the  le^- 
3ity  of  the  votes  upon  the  property  purchafed  of  Mr. 
Bloodgood,  the  following  was  the  divifion : — In  favour  of 
their  admifhon,  the  Recorder,  Aldermen  Barker,  and 
Minthorne,  and  MefTrs.  Gilbert  and  Verveelen :  Againft 
them,  Aldermen  Coles,  Strong,  Lenox  and  Foil,  and 
Meifrs.  Brafher,  Ten  Eyck  and  Nitehie. 

To  clofe  the  honorable  fcene  with  proper  dignity  and- 
grace,  Mr.  Brafher  now  produced  his  celebrated  revoluti- 
on— a  meaiure  calculated  to  enrol  him  among  the  mofl 
confpicuous  fons  of  fame.  Let  me  give  a  fac  JmiU  of  tJic 
extraordinary  inllrument — 

Whereas  fundry  perfons,  thlrty-nlhe  in  number,  thir-^ 
•ty-fix  of  ivhome  voted  at  the  late  election  of  Charter  Offi- 
cers in  the  fifth  ward,  to  wit,  Josuah^  Barker^, 
^  ^    *    Qatera  defunU    *    ^ ) 


by  combination  among  tliemfclves,  for  the  avowed  purpofe 
of  obtaining  votes  at  the  faid  ele(£lion,  on  the  i6th  day  of 
November  laft,  purchafed  a  lot  of  ground,  and  the  build- 
ings thereon,  fituate  in  the  faid  ward,  from  one  Abraham 
Bloodgood,  at  the  price  of  2000  dollars^  and  took  his  con- 
Tcyauce  for  the  fame  to  themfelves,  their  heirs,  &  afTigns, 
as  tenants  in  common.  And  whereas  it  has  been  quefliion- 
cd  whether  the  faid  tenements  were  in  truth  of  fufFicient 
value  to  entitle  the  faid  feveral  perfons  to  vote  at  the  faid 
cIe£lion :  And  alfo,  whether  a  freehold  purchafed 
aforefa;d  by  fuch  combination,  for  the  fole  and  avowed 
purpofe  of  voting  at  the  then  election  of  charter  officers, 
could  afford  a  qualiiication  to  the  purchafers  for  voting  as 
aforefaid.  And  whereas  the  evidence  produced  by  the 
f)arties,  and  the  arguments  of  their  council,  have  been 
heard  and  duly  attended  to — 

Therefore,  Refolved,  as  the  fenfe  of  this  board, 

"  ift.  That  the  faid  combination  is  contrary  to  the  true 
intent  and  fpirit  of  the  charter  of  this  city  and  of  the  a£t 
of  the  legiflaturc  regulating  the  eledlion  of  charter  offi- 
cers, and  is  to  be  confidcred  as  a  fraud  *  upon  the  election 
of  evil  and  dangerous  example — calculated  to  defeat  the 
regular  and  deliberate  exercifc  of  the  important  privilage 
of  voting  for  charter  officers  by  covert  and  fmifter  artifices 
and  contrivances  of  a  fmall  number  of  individuals. 

*  I  Mould  ask  tliose  conscientious  gentlemen,  who  are  so  extremely 
liberal  in  their  charges  of  Fraudj  whether  the  total  annihilation  of  the 
V  hole  body  of  freemen  if  not  a  greater  fraud  than  the  purchaie  of  a  free- 
hold to  become  entitled  to  a  vote?  Is  not  the  denial  of  the  privilege  of 
vpting,  to  tJie  grc5^  majority  of  citizens,  a  public  ofi'cnce  of  much  more 
evil  and  dangerous  example ?  I*  it  not  infinitely  more  calculated  to  de- 
feat the  freedom  of  charier  elections?  It  is  a  direct  and  wanton  outrage 
Wpoo  the  feelijJgs  and  rights  of  the  people. 

J-ySANDER. 


44 

2dly.  That  the  faid  lot  of  ground  and  the  building 
thereon  are  not,  in  the  judgment  of  this  board,  of  fufficient 
value  to  entitle  thirty-nine  perfons  each  to  a  vote  in  the 
election  of  charter  officers,  and, 

Sdly,  for  the  reafons  aforefaid,  this  board  doth  re- 
je£t  and  difallow  the  votes  of  the  faid  thirty-fix  perfons  fo 
given  as  aforefaid." 

This  precious  morfel  of  logical  fagaclty  was  carried  by 
the  accuftomed  majority. 

It  was  thereupon  refolved,  that  James  Roofevelt,efquire, 
by  a  majority  of  legal  votes,  was  elected  alderman,  and 
John  P.  Ritter,  efquire,  affiftant  of  the  fifth  ward.  That 
the  clerk  of  the  city,  (hould  be  directed  without  delay,  to 
inform  them  of  the  decifion  of  the  Common  Council  in 
their  favor,  and  give  them  notice  to  attend  the  board,  to 
take  the  oaths  of  office,  prefcribed  by  law. 

Thus  ended  the  folemn  mockery  of  this  unexampled 
icrutiny.  An  event  which  muft  produce  impreffions  up- 
on the  mind,  never  to  be  effaced.  An  exercife  of  power 
fo  arbitrary  and  unparalleled,  as  the  entire  deftru^lion  of  a 
popular  election,  muft  in  future  place  the  liberties  of  the 
people  within  the  complete  controul  of  the  members  of  the 
Common  Council,  unlefs  meafures  are  adopted  to  prevent 
the  repetition  of  fuch  an  outrage.  It  remains  to  be  afcer- 
tained,  whether  the  inhabitants  of  this  city  will  purfue  the 
legal  means  of  eftablifhing  their  rights  upon  a  firm,  faluta- 
ry  and  conftitutional  foundation,  or  fink  fupinely  into  the 
lethargic  flumbers  of  defpotifm. 


LYSANDER. 


No.  V. 


HISTORY  OF  ^fHE  SCRUTINY  IN  THE  FOURTH 
WARD— PROCEEDINGS  OF  THE  COMMON 
COUNCIL.— QUALIFICATION  OF  THE 
RETURNED  MEMBERS- 


"  PsTfy  rage?cl ; 
"  And  partial  power,  and  licence  unrestraiu'd." 

Thomson. 

**  To  what  an  height  wi'l  human  madness  rise  ! 

Where  will  its  impious  daring  Sx  its  bounds  ? 
«  If  eacii  succeeding  age  gains  strength,  and  swelli 
<*  With  ranker  villainy." 

Potter's  Euripides. 


/\^FTER  adopting  the  principles  in  Mr.  Brafli- 
cr's  refdlution,  it  was  evident  that  the  appearance  of  an 
inveftigation  into  the  election  of  the  Fourth  Ward  was 
idle  and  infulting.  It  was  clear,  that  every  material  quef- 
tion  had  already  been  decided — and  it  feemed  manifeft, 
^  that  the  majority  of  the  board  were  prepared  to  venture 
upon  every  extremity  for  the  accomplifhment  of  their 
purpofe. 

Previous  to  their  recent  declfion,  fome  flattering  hopes 
of  juftice  had  been  entertained.  The  majority  had  care- 
fully abftained  from  committing  themfelves  witli  regard 
to  the  votes  upon  the  property  which  had  been  purchafed 
from  Mr.  Bloodgood.  So  long  as  it  was  poflible,  they 
aniioufly  evaded  tlie  fubjeCt,  and  exprcfled  their  wilhes,  if 


46 

not  their  expectations,  that  a  dctermmatlon  fiiould  be 
made  without  involving  that  point.  In  the  view  of  thofe 
gentlemen,  it  was  a  matter  of  .extreme  delicacy.  It  was 
a  painful  and  embarraffing  fubje6l !  Could  they  have 
fuccecded  in  eftablifhing  more  challenges,  we  {hquld  ne- 
ver have  heard  of  their  prefent  decifion. 

The  fevcnth  of  December  was  the  day  appointed  by 
law  for  admlniflcring  the  official  oaths  -to  the  different 
charter  officers.  Three  o'clock  in  the  afternoon  was  the 
hour  appointed  for  that  purpofe.  A  meeting  of  the  Com- 
mon Council  was  directed  in  the  morning,  with  a  view  of 
determining  the  fcrutiny  before  the  period  afligned  for 
the  reception  of  the  new  members. 

Cornelius  C.  RoofeTelt,  and  P.  H.  Wendover,  efquires, 
were  the  republican  candidates.  J.  Bogert  and  Nicholas 
Carmer,  were  their  competitors.  The  former  were  return* 
cd  to  be  duly  ele(3:ed  by  a  majority  of  33  votes. 

The  onpofite  candidates  appeared  in  the  morning,  and 
j)roduced  their  refpe£live  lifts  of  challenges.  Thofe  lifts 
Jiaving  juft  been  interchanged,  it  was  not  to  be  cxpedled 
that  Mr.  Roofevelt  fhould  have  been  ready  to  proceed  un- 
til he  was  furniftied  with  the  exceptions  of  his  antagonift. 
He  rcquefted  an  indulgence  of  only  two  hours  for  the  nc- 
ceffary  preparation,  and  exprelfed  his  willingnefs  to  comi 
mcnce  the  proceedings  at  the  expiration  of  -that  time. 

In  this  ftagc  of  the  bufinefs,  Alderman  Coles,  after  ex- 
pending the  time  which  was  neceffary  in  the  compofition 
and  correction  of  it,  introduced  the  foHowing  remarkable 
refolution : 

Whereas,  at  the  eleCtion  for  charter  officers  in  the 
f  ourth  Ward,  held  on  the  ^third  Tuefday  of  Novemb^i^ 


47 

laft,  \t  appears  by  a  return  made  by  the  Infpedor  of  Uid 
'  ckdion,  that  Cornelius  C.  Roofevelt  had  a  majority  of 
votes  for  alderman,  and  P.  H.  Wendovcr  had  a  majority 
of  votes  for  affiftant  aldferman. 

And  whereas,  fince  the  faid  cledion,  to  wit,  on  Mon- 
day lafl  the  30th  ultimo,  John  Bogert,  a  candidate  for  tho 
office  of  alderman,  and  Nicholas  Carmer,  a  candidate  for 
the  office  of  affiftant,  at  faid  ek£tion,  did  prefent  to  thia 
board  their  memorials,  Jibing  forth  that  the  faid  Cornelius 
C.  Roofevelt  and  P.  H.  Wendover  were  not  duly  and 
legally  elected,  and  demand  a  fcrutiny  for  the  purpofc 
of  determining  who  of  the  faid  candidates  were  legally 
ele£led,  and  which  memorial  they  did  fubftantiate  by  their 
oaths,  as  thereunto  required. 

«  And  whereas,  this  board  did,  as  will  appear  by  their 
minutes,  determine  to  grant  the  prayer  of  fuch  memoria!^ 
and  the  refpedtive  candidates  have  been  furnifhed  with  in- 
formation of  fuch  determination  of  this  board,  and  this 
day  at  ten  o'clock  was  affigned  for  the  faid  Cornelius  C, 
Roofevelt  and  Peter  H.  Wendover  to  appear  and  fubilan- 
tiate  the  votes  objected  to  by  the  faid  John  Bogert  and 
Nicholas  Carmer. 

«  And  whereas,  the  faid  Cornelius  C.  Roofevelt  and 
P.  H.  Wendover  did  appear  this  morning,  and  ftate  to 
this  board,  that  they  were  not  then  ready  to  fubftantiate 
the  faid  votes  objcded  to. 

<<  Therefore,  Refolved,  that  the  faid  Cornejlus  C.  Roofe- 
velt and  Peter  H.  Wendover  are  not  yet  duly  and  legally 
cleded  alderman  and  affiftant,  nor  can  they  be  permitted 
to  take  the  neccflary  oaths  as  fuch,  or  take  their  feats  at 
this  board,  until  the  faid  fcrutiny  {hall  be  fully  examined 
and  determined  upon." 


A  refolutlon  that  members  regularly  returned  eledled 
by  a  large  majority,  are  not  yet  duly  eledled,  to  fay  the 
kail,  was  an  a6l  of  aftonifhing  boldnefs.  It  was  exercif- 
ing  a  power  parallel  to  that  which  is  fometimes  exercifed 
by  the  Enghfh  fovereign,  that  of  difpenfing  with  the  laws 
by  a  non  ohftante  edict.  It  was  ufurping  an  arbitrary  con- 
troul  over  the  elections  of  the  people.  A  propofition  fo 
monllrous  was  an  overmatch  for  the  genius  of  federalifm 
itfelf.  Upon  a  divifion,  fix  members  rofe  in  its  favour,  and 
fix  againft  it.  It  was  accordingly  loft  by  the  cafting  vote  of 
the  recorder*. 

MelTrs.  Roofeveltand  Wendover  having  withdrawn  from 
the  council-chamber  under  the  impreifion  that  the  fcru- 
tiny  was  not  to  proceed  until  the  next  day,  a  motion  was 
made,  that  they  fhould  be  notified  to  proceed  immediately. 
Upon  a  divifion,  the  votes  upon  each  fide  were  equal,  and 
the  motion  was  negatived  by  the  recorder. 

The  bufinefs  of  the  morning  ciofed  with  a  refolution  in- 
troduced by  Alderman  Lenox,  in  the  following  words : 

«  Whereas  a  fcruitany  has  been  demanded,  &  granted 
for  the  fourth  ward  of  this  city,  &  the  fame  being  pro- 
ceeded on,  and  their  not  being  fufficient  time  to  finifli  the 
faid fcruitany  before  the  time  by  law  for  qual'ijieng  the  mem- 
bers duly  eie^bed  on  the  1 7th  day  of  November  laft. 

Therefore  refolved  as  the  fenfc  of  this  board,  that  the  al- 
derman &  ajfifatjty  returned  as  cle£l:ed  at  the  faid  elec- 
tion, ought  not  to  be  qualified  into  office  until  fuch  fcruit^ 
mtiy  be  determined." 

This  refolution  was  accordingly  pafled.  Aldermen 
Lenox,  Coles  and  Poll,  and  Melfrs.  Ritter,  Brafher,  Ten 

*' Alderrnen  Lenox,  Co^es,  and  Post,  and  Messrs,  Brasher,  Tea  Eyck  , 
xnd  Nitchie  were  in  favour  of  the  resolution. 

Aldermen  Barkei,  Miuthorne  «ud  Stjong,  and  Mcffrs.  RitUr,  VcrYe«l«a. 
and  Gilbert  vot«d  against  it. 


Eyck  and  Nltchic  voting  in  its  favour,  and  Aldermen  Bar-* 
ker,  Minthorne,  Strong,  Meflieurs  Gilbert,  and  Ver- 
ycelcn  in  the  negative. 

After  refolving  to  recommence  the  fcrutiny  the  ncx* 
Uay  at  5  o'clock,  the  Common  Council  adjourned  to  meet 
in  the  afternoon,  for  the  purpofe  of  being  qualified  for  the 
cnfuing  year. 

Retaining  the  fame  integrity  and  firmnefs,  which  fo  em- 
inently diftinguifhed  him,  while  a  reprefentative  in  Con- 
grefs  ;  in  the  meeting  of  the  afternoon  the  mayor  admin- 
iftered  the  oaths  of  office  to  Aldermen  C.  Roofevelt  and 
Mr.  Wendover,  as  well  as  to  the  other  charter  officers 
cle£l.  The  poll  lift  was  prefented  to  him.'  It  was  a  re- 
cord which  he  was  bound  to  obey.  It  was  an  important 
crifis.  He  purfued  his  own  impreffions  of  law  and  recli- 
tude.  He  regarded  only  the  confcientious  dilates  of  duly. 

On  the  8th  of  December,  the  Common  Council  met  in 
purfuance  of  their  adjournment,  to  refume  the  confidera- 
tion  of  the  fcrutiny.  Mr.  Riker,  of  counfel  for  Alderman 
C.  Roofevelt  and  Mr.  Wendover,  fubmitted  the  queftion, 
whether,  as  they  had  been  already  fworn  as  members,  and 
thereby  taken  the  legal  poffeffion  of  their  feats,  the  Common 
Council  were  legally  entitled  to  proceed.  The  mayor 
mentioned  tlie  refolution  of  the  board,  and  the  fcrutiny 
proceeded. 

The  firft  cafe  prefented,  -ivas  that  of  Smith  Valentine. 
A  deed  was  produced  to  him,  and  73  other  perfons  for  a 
houfe  and  lot  of  ground  in  Dey-ftreet. 

Daniel  D.  Wickham  and  Return  Strong  the  fubfcribing 
wkneffes  to  that  deed,  were  introduced ;  both  of  them 
fworc  to  the  execution  of  it.    The  latter  tcfti&ed  its  dclir-' 

G 


5® 

cry  toW.Boyd,  cfquirc,  as  the  general  agent  of  the  grantees , 

The  board  then  proceeded  to  examine  witneffes  with 
refpe£l  to  the  value  of  the  property. 

Mr.  George  Stanton  fwore  that  the  day  before,  he  was 
requefted  to  examine  it.  That  he  accordingly  went  and 
examined  it  throughout.  It  is  the  houfe  and  lot  No  50, 
Dey-ftreet — is  confiderably  out  of  repair,  and  in  his  opinion 
worth  about  ^1500. 

Dr.  Gardner  Jones  teftified,  that  he  owns  a  houfe  and 
lot  in  Dey-ftreet,  which  he  valued  at ^.2500  ;  that  he 
knew  the  houfe  and  lot  No.  50 ;  that  about  6  or  7  years 
ago  he  offered  ^.2200  for  the  houfe  of  Mrs.  Crookes,  next 
door  to  it ;  Mrs.  C.  then  afked  ^.2500  for  her  houfe  and 
lot ;  flie  continues  to  afk  the  fame  price,  but  has  lately  faid 
file  would  take  ^.2400  in  a£lual  money.  He  has  feen  the 
houfe  No.  50,  and  been  in  the  front  room ;  it  looks  rather 
better  than  the  houfe  of  Mrs.  Crookes,  and,  as  far  as  his^ 
knowledge  extends,  "  is  as  eligible  as  that."  Dr.  Jones 
gave  1900  for  his  houfe  about  6  years  ago;  it  was 
then  in  a  very  unfinifhed  ftate. 

Thomas  Miller  lately  bought  the  houfe  No.  5  2  in  the 
fame  ftreet ;  No.  50  is  of  the  fame  fize,  and  improvements 
pretty  much  the  fame.  In  May  laft,  he  gave  5  300  dols.  for 
his  houfe;  he  believes  No.  50  is  not  as  good;  fuppofes 
about  1000  dollars  difference ;  believes  that  No.  50  may 
be  worth  about  4000  dollars,  perhaps  a  little  more;  he 
was  never  infide  of  it;  the  building  is  of  the  fame  fizc 
with  his  own  ;  he  thinks  it  appears  fomewhat  older ;  his 
houfe  was  iifured  at  2000  dollars ;  it  would  rent for^ 2 00  ; 
he  fuppofe*  N0.50  would  rent  for  150, if  in  good  order; 
he  valued  vacant  lots  at  1000. 


51 

Mr.  Striker  owns  the  houfc  and  let  No,  55  Dey-ftrect ; 
knows  the  houfe  No.  50,  but  has  never  been  in  if,  his  is 
1 00  by  2:;  feet  in  dimcnfion,  and  has  alfo  an  L  to  it ;  he 
valued  his  at  £.2$oo  ;  the  houfe  No.  50  is  pretty  much 
like  the  houie  of  Mrs.  Crookcs. 

Mr.  Stanton  being  called  again,   declared,  that  Mrs* 
Crookes'  houfe  was  much  better  than  the  houfe  No.  50 
that  it  has  a  back  building,  and  is  worth  j^. 400  more  ;  and 
that  he  was  lately  commifTioned  to  fell  as  good  a  houfe,  as 
good  a  lot  and  as  good  a  ftand  for  ^.1700. 

Mr,  John  Utt  teftified,  that  he  owns  the  houfc  and  lot 
No.  3oDey-n:reet  j  that  his  lot  is  77  by  25  feet  in  dimen- 
fion ;  that  within  a  year  paft,  he  has  been  offered,  and  re- 
fufed,  ^.2200  i  that  he  has  been  in  the  lower  part  of  the 
houfc  No.  50,  and  believes  it  to  be  fully  worth  the  money 
given  for  it, 

John  Swartwout,  Efquire,  and  Mefirs.  Matthew  L.  Da- 
vis and  James  Warner,  fevcrally  appeared,  and  teftified 
that  they  were  feized  of  freeholds  in  the  4th  ward  to  tlic 
anjount  of  ;^.2o  in  their  own  rights,  over  and  above  all  in- 
cumbrances; and  that  they  had  polTefled  the  fame  for  the 
fpacc  of  thirty  days  and  upwards  preceding  the  elediono 
Several  queftions  were  put  to  them,  which  they  did  not 
confider  themfelvcs  bound  to  anfwer.  Thefe  gentlemen 
■were  acquainted  with  their  rights,  and  pofTefTed  th«  fpirit 
to  defend  them.  Stridly  adhering  in  their  oath  to 
the  qualifications  prefcribed  by  law,  they  declined  re- 
plying to  interrogatories  not  pertinent  to  the  occafion.  In 
the  habit  of  extorting  the  moft  fervile  and  implicit  obedi- 
ence, the  board  of  Common  Council  could  not  brook  the 
appearance  of  oppofition  to  their  authority,  tlieir  pro- 
ceedings were  luftantly  thrown  into  a  ftate  .of  diftradtion^ 


52 

Xcaying  the  cle£lors,  the  witnefTes  and  fpeftators,  they 
abruptly  retired  to  their  private  chamber,  without  afford- 
ing ^thc  parties  a  notice  of  their  intention,  or  appointing 
any  period  for  the  continuance  of  the  fcrutiny. 

The  eledors  and  witnefles  accordingly  departed.  No  foon- 
cr  had  the  Council  arrived  within  their  room,  but  they  felt 
the  aM'kwardncfs  and  delicacy  of  their  fituation.  By  their 
own  a<3:,  they  had  interrupted  the  proceedings.  It  was 
the  wilh  of  the  majority  inftantly  to  decide-,  yet,  what 
apology  could  they  offer  to  excufe  fuch  precipitation  ?  In 
the  performance  of  a  criminal  tafk,  the  interval  between 
the  refolution  and  its  accomplifhmcnt  muft  be  dreadful. 
Eager  to  terminate  the  farce,  but  apprehenfive  of  the  con- 
fcquences,  in  the  midft  of  their  refolution,  they  endured 
the  tortures  of  fear,  anxiety  and  fufpenfe. 

They  had  retired  with  precipitation — the  evening  had 
far  advanced — by  a  fudden  guft  of  paffion,  they  had  com- 
pelled the  parties  to  withdraw — ele6tors  and  witnefles  had 
all  difperfed  into  tlie  different  quarters  of  the  city — each 
had  retired  to  his  refpe61:ive  abode,  and  engaged  in  differ- 
ent purfuits.  To  coUedl  them  together,  that  evening,  was 
impra£ticabic  •,  yet,  if  pofTible  to  produce  the  appearance 
of  formaHty  and  a  femblance  of  juflice,  Mr.  Roofevelt 
and  Wendover,  at  that  late  hour  of  the  night,  were  called 
upon  to  furnifh  further  evidence  to  fubftantiate  the  votes 
in  their  favor  j  and  given  to  underfland,  if  they  had  fuch 
teftimony  to  offer,  the  board  were  then  ready  to  hear  it. 

Mr.  Riker,  of  eounfel  for  the  returned  magiftrates,  who 
had  remained  in  the  city-hall  to  await  the  iiTue  of  this  ex- 
traordinary fcene,  immediately  replied  in  writing,  That  he 
had  further  evidence  to  offer  as  to  the  other  voters  whojGe 
right  to  vote  had  not  been  examined  into.  That  the  evi* 
dence  weuld  be,  that  the  voters,  refpeclively,  had  a  fice^ 


55 

hold  eftate  of  the  value  of  upwards  of  fifty  dollars  in  the 
fourth  ward  of  the  city  of  New-York,  in  their  own  refpec- 
thre  rights,  free  of  all  incumbrances.  That  the  voters 
would  refpedlivcly  prove  they  were  poffefled  of  their  faid 
freeholds  more  than  thirty  days  preceding  the  late  eleclioii 
for  charter  officers.  That  they  had  made  no  promifc,  cx- 
prefs  or  implied,  to  transfer  or  re-convey  their  or  either  of 
their  refpedlive  freeholds;  and  that  they  had  paid  the  full 
confideration  of  fifty  dollars  at  the  leall  for  each  of  the 
faid  freeholds.  That  the  witnefles  to  prove  tlie  fame  attend- 
ed in  the  room  in  the  city-hall  v/hicli  was  afligned  for  the 
purpofe ;  but  that  the  honorable  board  having  adjourned 
without  appointing  any  time  or  place  for  further  inquiry, 
and  the  witnefles  not  knowing  when  or  where  to  attend  the 
board,  it  was  out  of  the  power  of  the  counfel  to  produce 
the  teftimony  that  evening. 

Although  the  Common  Council,  by  their  own  tiO:,  had 
completely  difperfed  the  witnefles,  in  defiance  of  all  the 
circumftances  urged  by  counfel,  the  ufual  majority  of  the 
board  refolvcd  upon  an  immediate  decifion.  A  queftion 
was  accordingly  tr^b^n  upon  the  vote  of  S.  Valentine," 
which  was  negatived  as  follows:  For  admitting  his  vote, 
the  Recorder,  Aldermen  Barker  and  Mint  home,!  MeflVs. 
Gilbert  and  Verveclen.— Againit  it,  Aldermen  Coles,  Le- 
nox, Strong  and  J.  Roofevelt,  and  Meflirs.  Brafher,  Ten 
Eyck,  Nltchie  and  Rltter. 

The  recorder  then  introduced  a  refolutlon  in  the  follow- 
ing words^: 

"  Whereas  at  the  fcrutiny  which  has  taken  place  this 
evening,  witnefles  were  examined  as  to  the  qualification  of 
^mith  Valentine,  John  Swartwout,  Mathew  L.  Davis,  and 
James  Warner,  as  ele€lors  at  the  bfl:  eledion  for  charter 


54 

officers  in  this  city,  and  whereas  the  board  have  decided 
the  qualification  of  Smith  Valentine,  as  infufiicient  to  vote 
at  fuch  ele£lion.  And  whereas  it  is  propofed  to  take  a 
queftion  on  the  qualification  of  N  .  Roome,  of  whofe  right 
to  vote,  further  teftimony  is  offered  to  be  produced  by  the 
returned  members,  at  the  next  meeting  of  this  board — • 
therefore,  refolved  that  this  board  ought  not  to  proceed  t& 
the  decifion  of  the  qualification  of  any  other  voter  at  fuch 
election,  with  refpeci  to  which  the  teftimony  offered  has  not 
been  produced,  on  account  of  the  adjournment  of  this 
board  to  the  council  room." 

Even  this  refolution,  the  moft  juR  aiid  reafonable,  which 
can  poffibly  be  conceived,  was  negatived.  The  recorder, 
Aldermen  Barker  and  Minthorne,  MelTrs.  Gilbert  and 
Verveelcn  only,  voted  in  its  favor  jand  Aid.  Coles,  Lenox, 
Strong,  J.  Roofevelt,  Melfrs.  Braflier,  Nitchie,  Ten  Eyck, 
and  Rioter,  for  its  rejedion. 

The  next  queflion  was  upon  the  right  of  Nicholas  Roomc, 
Mr.  Gilbert,  Aldermen  Barker,  Minthorne,  and  Mr.  Ver- 
veelen,  perceiving  the  determined  fpiritofthe  majority,  de- 
clined voting,  and  intimated  their  intention  to  prepare  a 
proteft  againftfuch  unjuflifiable  procecdure.  Mr.  Roome's 
vote  was  rejected,  the  recorder  only  rifing  in  its  favor. 

Aldermen  Lenox  then  prefented  the  fubfequent  refo- 
lution : 

«  Whereas  the  witneffes  produced  on  the  part  of  Corne- 
lius C.  Roofevelt,  efq.  and  Mr.  P.  H.  Wendover  to  fub- 
ftantiate  the  votes  objeded  to  by  John  Bogart,  efq.  and  Mr. 
N.  Carmer,  have  refufed  to  anfwer  the  queftions  put  to 
them,  touching  the  purpofes  for  which  the  freehold  on  which; 
^ey  refpedively  voted,  was  pur  chafed  ; 


55 

■  And  whereas  no  evidence  has  been  produced  to  thia 
board,  to  fhew  that  a  certain  William  Jenning,  who  con-* 
reyed  to  the  pcribns  whofe  votes  are  objected  to,  and  upon 
which  conveyance  tlie  faid  votes  were  given,  had  a  legal 
title  to  the  eitate  faid  to  be  conveyed  to  the  faid  TOters 

"And  whereas  the  grantees  of  the  faid  property  were  noC 
produced  in  order  that  the  board  could  have  fully  afcertain- 
ed  all  the  circumftances  relative  to  the  fame  *,  And  the 
board  being  fully  convinced  *  that  the  faid  property  was 
purchafed  fecrctly,  with  the  fole  view  of  creating  votes  un- 
duly to  influence  the  ele<£lion  of  alderman  and  afliftant,  at 
the  late  ele6tion  in  the  fourth  ward  ; 

^'Therefore  refolved  that  the  votes  fo  objedled  to  by  John 
Bogcrt  and  N.  Carmer,  and  contained  in  the  deed  referred 
to,  are  unlawful,  in  as  much  as  the  property  was  not  of 
the  value  required  by  law — free  of  incumbrances,  and  the 
fame  is  contrary  to  the  fpirit  of  the  charter  of  this  city, 
and  the  laws  of  this  ftate,  relating  thereto," 

Mr.  Lenox's  refolution  was  carried  by  a  majority  of 
three  ;  himfelfy  Aldermen  Coles,  Strong,  and  J.  Roofe- 
velt,  Meflrs.  Braflier,  Ten  Eyck,  Nitchie,  and  Ritter,  vo- 
ted for  it ;  and  the  Recorder,  Aldermen  Barker,  Minthorne, 
MeiTrs.  Gilbert  and  Verveelen  as^ainft  it. 

A  refolution  was  then  unanimoufly  pafled,  "  that  the 
mayor  be  requcfted  to  take  the  opinion  of  General  Hamil- 
ton in  writing  on  the  following  queftion,  to  wic,  whether 
under  the  charter  of  this  city  the  board  have  any  authority 
to  queftion  the  right  of  a  freeholder,  or  freeman  to  his  feat 
when  returned  duly  ele£led  by  the  rctuining  officer,  as  2. 
member  ?"f 

*  Without  evidence  ! 
I  General  Hamilton  iiai  lincc  declixied  giving  bis  cpiuioD  upoa  tJkt  lubj^ct, 


S6 

The  bufinefs  of  the  evening  clofcd  with  a  refoIutto« 
«  that  upon  a  fcrutiny,  had  relative  to  the  eledioii  of  an  al- 
derman and  afliftant  for  the  fourth  ward,  it  appeared  that 
John  Bogcrt  had  a  majority  of  votes  for  alderman,  and 
Nicholas  Carmer  for  afliftant."  That  the  faid  John  Bogert 
was  therefore  duly  eleded  alderman,  and  the  faid  Nicho- 
las Carmer  afliftant  of  the  fourth  ward,  and  that  they  take 
their  feats  accordingly- 
Such  was  the  termination  of  this  extraordinary  pro- 
ceedure.  A  tranfadion  fo  flagrant,  and  unprincipled,;fcarcely 
requires  any  comment.  An  attempt  to  deftroy  the  rights  of 
magiftrates  returned  to  be  duly  ele6ted,  a  decifion  precipi- 
tated without  affording  an  opportunity  for  the  examinati- 
on of  witnefies.  The  exercife  of  a  jurifdi6^ion  without 
any  inveftigation  of  its  legality,  and  the  requeft  of  a  profef- 
fional  opinion,  after  a  decifion  already  irrevocably  made, 
are  circumftances,  which  thofe  gentlemen  will  ftiortly  be 
called  upon  to  juftify  to  the  feelings  of  an  infulted  commi*- 
nity. 

LYSANDER. 


No.  Vt, 


PROCEEDINGS  OF  THE  COMMON  COUNCIL  SUBSEQUENT  TO 
THE  SCRUTINY— PROTEST  OF  THE  MINORITY— APPLI- 
CATION AND  REFUSAL  OF  MR.  BOGERT— SECESSION 
OF  THE  FEDERAL  MEMBFRS— PRESENT  STATE 
OF  THE  CITY. 


"  See!  self-abandonM,  Iiow  tliey  roam  adrift, 
I)Mh'd  o'er  the  town,  a  miserabie  wreck  I" 

Thomson, 

^^^FFAiRS  were  now  approaching  to  a 
crifis  which  required  an  union  of  temperate  deliberation^ 
t^'ith  inflexible  perfeverance.  The  defigns  of  the  federal 
majority  had  become  completely  unveiled.  It  was  a  con- 
teft  between  ufurpation  and  juftice.  The  arbitrary  claims 
of  the  corporation  were  oppofed  to  the  rights  of  the  people. 
The  balance  was  fufpended  between  liberty  and  flavery« 
A  ftate  of  fuch  diforder  demands  the  interpofition  of  the 
fovereign  authority.  Submiflion  at  this  period  would  have 
amounted  to  a  dereli£tion  of  every  principle  of  honor.  Ic 
would  have  been  a  total  abandonment  of  the  caufe  of  the 
city. 

The  mayor  and  the  recorder  are  the  perfons  appointed 
by  law  to  adminifter  the  oaths  of  office  to  the  charter  offi-« 
cers  ele£t.  It  has  been  ufual  in  pra6i:ice,  to  adminiiter  fuch' 
oaths  in  the  prefencc  of  the  Common  Council,  but  thaf 
Colemnity  is  not  in  ftriQnefs  required  by  the  charter.  In 
ihe  performance  of  this  duty,  the  mayor,  or  the  recorder, 

H 


tfiuft  be  governed  by  a  found  difcretion.  They  tliemfelves- 
tnuH  perform  the  z^,  and  they  muft  judge  of  its  propriety. 
Alderman  Roofevelt  of  fehe  fourth  ward,  and  Mr.  Wen- 
dover,  had  already  been  qualified — they  had  taken  their" 
feats  at  the  board,  and  were  placed  in  the  legal  polTelTion  of 
their  offices.  Their  eledion  was  apparent  from  the  face 
of  the  record  returned.  The  right  of  fcrutiny  was  con- 
tefted,  and  the  preponderance  of  argument  was  evidently 
againfl  the  propriety  of  its  exercife.  The  Mayor  and  the 
Recorder  had  been  prefeht  during  the  whole  of  the  pro- 
ceedings. They  were  fpedlators  of  their  injuftice.  They 
had  witnefled  their  illegality.  Under  thefe  circumftances 
Mr.  Bogert  applied  to  take  the  oath  of  office.  Upon  what 
principle  of  juftice  could  k  have  been  adminiflered  ?  The 
right  of  Alderman  Roofevelt  was  evident.  Could  the 
prctenfidns  of  two  claimants  have  been  admitted  at  the 
fame  moment  ?  Could  he  havs  been  deprived  of  his  of- 
fice previous  to  the  deeifion  of  a  tribunal  acknowledged  to 
be  competent  ? 

To  the  application  of  Mr.  Bogert,  the  Mayor  replied  with 
calmntfs,  that  he  had  forefeen  the  queftion,  and  had  exa- 
mined it  with  impartiality.  That,  in  his  official  c6ndu6i:, 
he  fliould  fteadily  endeavour  to  adhere  to  the  path  of  duty 
— regretting  the  neceffity  which  compelled  him  to  differ 
from  the  majority  of  the  Common  Council,  he  could  not 
avoid  purfuing  the  dictates  of  his  Own  opinion.  He,  there- 
fore, declined  adminiftering  the  oath  to  Mr.  Bogert.  The 
Recorder,  upon  being  appealed  to,  coincided  in  fcnti-v 
ment  with  the  Mayor. 

I  ihall  not  detail  the  warmth  of  expreflion  vrhich  enfued. 
it  would  be  more  honorable  to  deliberative  affemblies  if 
dlSerenges  in  opiniou  did  not  too  often  lead  them  to  adts 


59 

of  the  greatefl  Indecorum.  It  was  obfcrvcd  by  Aldermak 
Coles,  tliat  no  difficulty  could  cnfue,  for  that  Mr.  Bo|^ctl 
was  entitled  to  his  feat  as  a  magillrate  of  the  preceding 
year.  To  this  it  was  replied,  that  fuch  could  not  be  the 
cafe,  becaufe  his  fuccelTor  had  already  been  fworn. 

Only  one  ftep  remained  to  be  taken,  and  that  was,  by 
an  a£t  of  violence,  to  deprive  Alderman  C.  Roofevelt  and 
Mr.  Wendover  of  their  feats.  It  was  accordingly  moved, 
that  the  clerk  fhonld  be  dire£led  to  erafc  their  names  from 
the  minutes  of  the  board.  Succefsfully  oppofed  by  ths 
republicans,  and  diiven  to  defperation,  they  were  prepar- 
ed to  purfue  tlie  utmofl  extremes  of  raflinefs  and  indeli- 
cacy. To  pronounce  a  juft  decifion  was  not  their  obje£l. 
Their  only  wifli  was  to  retain  their  wonted  afcendancy. 
Defeat,  in  thiscontefl,  they  viewed  as  a  prelude  to  the  re- 
floration  of  the  public  rights,  and  die  powers  of  the  Com- 
mon Council  as  a  bulwark  for  the  fupport  of  ariftocracv. 
In  vain  had  the  law  officers  of  the  corporation  expreiTed 
their  fentiments  upon  a  fubjc6l  with  which  they  were  mod 
converfant.  Fruitlefs  were  the  attempts  to  introduce  deli- 
beration and  difcuffion.  The  end  was  too  important  to  be 
facrificed  to  the  inferior  confiderations  of  probity  and  juf- 
ticc.  Accordingly,  the  motion  of  Mr.  Coles  muft  be  view- 
ed as  the  remaining  a£t  of  defperation,  and  as  an  evidence 
of  fettled  intention  to  .>cffi:cl  the  purpofes  of  the  majority, 
without  a  nice  difcrimiiiation  of  the  means  to  be  em- 
ployed. 

Upon  the  divlfion  being  called.  Aldermen  Coles,  Strong, 
Lenox,  J.  Roofevelt,  MeflVs.  Nitchie,  Ten  Eyck,  Braflicr 
and  Ritter  appeared  in  its  favour.  The  Recorder,  Alder- 
iiien  Barker,  Minthorne,  C.  Roofevelt,  Meffi-s.  Gilbert, 
Vcrveclen,  and  Wendover  voted  againll  it.    The  Mayor 


6a 

jnterpofed  his  voice ;  the  number  of  votes  was  equal  on 
each  fide ;  the  motion  was  accordingly  Joft. 

The  Interference  of  MelTrs.  C.  Roofevelt  and  Wendover 
jnay,  perhaps,  by  fome,  be  confidered  as  indelicate;  fuch 
opinion,  however,  would  not  be  founded  in  juflice.  If  their 
own  rights  alone  had  been  involved,  it  would  have  been  en- 
titled to  weight ;  but  the  prefent  was  a  public  queftion,  in 
which  the  liberties  of  their  conftituents  were  at  (lake.  On 
the  prefent  occafion  they  purfued  the  impulfe  of  duty ; 
they  could  not  abandon  the  interefts,  nor  difappoint  the  ex- 
pectations, of  the  ward  they  reprefented. 

Equally  juflifiable  was  the  condud  of  Mayor.  In  a 
crifis  which  demanded  the  exercife  of  duty,  the  rights  of 
his  fellow-citizens  could  not  be  facrificed  to  falfe  delicacy 
If  he  had  a  voice  to  give,  could  l\e  juftify  withholding  it  ? 
At  a  moment  when  his  country  required  his  exertions,  in— 
ad^ivity  would,  with  juftice,  have  been  confidered  criminal. 
As  a  conftituent  member  of  that  body  he  is  entitled  to  a 
vote.  Upon  a  prelFing  emergency,  when  it  can  be  effec- 
tual, he  is  bound  to  exercife  it. 

I  am  aware  it  has  been  believed  that  the  Mayor  has  only  a 
calling  vote  in  cafes  of  equal  divifion.  This  opinion,  however 
current,  has  been  received  without  inveftigation  ;  Hke  ma- 
ny other  received  errors,  it  muft  be  deflroyed  whenever  it 
becomes  the  fubjedt  of  argument.  If  he  is  a  member  of  the 
board,  he  muft  be  entitled  to  the  privileges  refulting  from 
that  ftation.  If  we  are  governed  by  precedent,  or  analogy, 
we  need  not  travel  far.  Neither  the  vice-prefident  of  the 
United  States  nor  the  lieutenant-governor  of  this  ftate^ 
except  upon  an  equal  divifion,  have  a  right  to  vote  in  the 
refpedive  bodies  over  which  they  prefide ;  the  reafon  is 
obvious,  becaufe  they  are  not  members.    The  governor  iik 


6i 


«nly  cntitkd  to  a  caftiiig  vote  in  the  council  of  appointment, 
although  he  is  a  conflituent  member  of  it.  The  rcafon  is 
equally  obvious,  bccaufc  he  is  cxprefsly  reRriclcd  by  the 
conftitution.  That  prohibition  would  have  been  entirelf 
idle  if  the  right  of  voting  was  not  otherwifj  confidcred  as 
appurtenant  to  memberfliip.  In  the  houfe  of  reprefenta* 
tives  of  the  union,  and  in  the  aflembly  of  this  ftate,  the  re- 
fpe£live  fpeakers  have  undoubtedly  a  vote  in  their  capacity 
of  members  5  and  repeated  inftanccs  can  be  adduced  of  the 
cxercife  of  that  right. 

Language  cannot  defcribe  the  mortification  and  difap- 
pointmcnt  difplayed  upon  this  queftion.  Confternation  and 
confufion  inftantly  prevailed.  In  a  moment,  the  federalids 
perceived  the  darling  obje6i:  of  their  illegal  condu£^  com- 
pletely defeated.  To  their  unfpeakable  aftoniflmient  and 
difmay,  they  difcovered  they  were  no  longer  -a.  majority  in 
that  board  over  which  they  had  hitherto  reigned  with  arbi- 
trary fway.  Unable  to  conceal  their  emotions,  they  called 
for  an  inflant  adjournment,  and  left  the  board,  as  it  ap- 
pears, with  the  intention  to  meet  no  more. 

During  thefc  tranfa&ions,  the  minority  of  the  hoard  pre- 
fented  their  promifcd  protefl  j  from  the  agitation  excited  by 
thofe  proceedings,  they  were  not  furnifhed  with  an  oppor- 
tunity of  having  it  read.  It  was,  therefore,  delivered  to  the 
clerk,  and  filed  among  the  records  of  the  Common  Council. 
It  is  a  document  too  interefting  to  be^  omitted  in  the  annals 
'of  their  proceedings. 


PROTEST  OF  THE  MINORITY. 

"We  the  underfigned  members  of  the  Common  Council 
iof  the  city  of  New-York;,  do  folemnly  ^liflent  from,  an.l 


4t 

f  Yoteft  agamfl  the  proceedings  and  decirions  of  a  majority 
,of  that  board  in  relation  to  the  late  eledions  in  the  fourth 
^nd  fifth  wards,  and  demand  that  this  our  proteft  may  be 
entered  of  record  upon  the  minutea. 

Bccaufe,  in  thofe  proceedings,  the  majority  of  this  board 
have  aflumed  an  authority  to  which  they  are  not  at  prefent 
entitled  by  the  charter  of  this  city  or  by  the  laws  or  confti- 
tution  of  their  country  : 

Becaufe,  in  the  exercife  of  that  authority  they  have  zd:- 
ed  partially,  precipitately,  in  oppofition  to  the  weight  of 
evidence,  and  contrary  to  law  : 

Bedaufe  the  legiflature  has  regulated  the  election  of 
eharter  officers  by  a  law  of  the  ftate  and  by  eftablifhing 
the  qualifications  of  electors  of  thofe  officers,  and  providing 
a  method  of  telling  thofe  qualifications,  to  wit,  by  the 
oath  of  the  eledor,  to  be  adminiftered  by  the  infpe£tor. 
kave  virtually  repealed  any  provifion  for  that  purpofc 
which  might  otherwife  have  been  derived  from  the  charter : 

Becaufe,  by  that  a£l  of  the  legiflature,  made  for  the  folc 
and  avowed  purpofe  of  regulating  our  charter  eledlions, 
the  infpedtor  is  exprefsly  made  the  prefiding  as  well  as  re- 
turning officer,  inafmuch  as  he  is  thereby  invefted  with 
judicial  powers,  his  return,  with  refpe<9:  to  the  qualfficatU 
g>n  of  ele(5lors,  is  final  and  conclufive  upon  this  board  : 

We  are  ftrongly  imprefled  with  this  opinion,  and  believe 
it  to  be  hwt  forafmuch  as  we  are  convinced  that  the  autho- 
rity of  the  legiflature  is  paramount  to  the  charter  or  bye-? 
laws  of  any  corporation : 

Becaufe,  in  paffing  that  ad  for  the  exprcfs  purpofc  of  re* 
gulating  our  charter  eleftions,  it  was  the  intention  of  the 


<f5 

^cgiffature  to  place  thofc  ele6lions  upon  a  foundation  pwf^- 
manent,  certain,  confonant  to  the  fpirit  of  our  Jaws,  con- 
formable to  the  fpirit  of  our  conftitution,  and  friendly  W 
the  rights  of  the  people  : 

Becaufe,  in  every  other  ele£\Ion,  the  oath  of  the  free- 
holder, with  refpedt  to  the  value  and  exiftence  of  hig' 
ellate,  is  confidered  to  be  finaj : 

Becaufe,  'in  the  exerclfe  of  fuch  tranfcendent  powers 
by  the  Common  Council  of  the  corporation,  there  does 
not  exift  an  adequate  refponfibility : 

Becaufe  the  authority  claimed  and  exercifed  by  the  nia- 
jority  of  this  board  is  unlimited,  undefined  and  undefina- 
ble,  inverting  them  with  high  and  arbitrary  powers — pow- 
ers dangerous  to  the  rights  and  franchifes  of  the  inhabitants 
of  tUs  city : 

Becaufe  the  exerclfe  of  that  authority  involves  the  trial 
of  freehold,  prefenting  queftions  intricate  and  difficult,  to 
the  decifion  of  which  this  board  is  altogether  incompe- 
tent : 

Becaufe  this  corporation  poflefles  not  the  power  of 
cre£ling  itfelf  into  a  felf-created  tribunal,  to  decide  upon 
the  value  of  an  elector's  eftate  : 

Becaufe  there  is  no  precife  and  determinate  ftandsrd  by 
>vhich  to  e ft i mate  the  value  of  freeholds.  We  have  feen 
how  much  that  val-ae  refts  in  mere  opinion  j  we  have  heard 
the  cftimation  of  every  witnefs  vary  with  circumftances 
and  fitUation ;  we  have  perceived  how  widely  men  of  equal 
judgment  and  difcretion  will  differ  from  each  other:  a 
power  fo  loofe,  fo  vaft,  affording  fuch  unlimited  latitude  trf 


^4 

4ifcretl0H,  wpuM  enable  a  majcrity  of  this  board  to  be- 
come, with  perfect  impunity,  the  arbiters  of  eledions : 

Bccaufe  the  authority  claimed  by  a  majority  of  thif 
board  might  and  would,  upon  every  ele6i:ion,  involve  in- 
jiunierable  trials : 

Becaufe  this  board  potTefles  not  the  power  of  compelling 
the  attendance  of  witnefles  or  electors,  nor  to  enforce 
Their  anfwers  to  interrogatories  when  they  have  attended: 

Becaufe  the  man  returned  e\eQ:ed  to  an  office  acquires 
thereby  a  jta  legitimum,  or  perfect  right.  Forafmuch^ 
therefore,  as  it  is  an  univerfal  axiom  in  law,  that  every 
perfe£^  rig^t  poffefles  its  correfpondent  remedy,  it  follows 
as  the  dire6t  and  inevitable  conclufion,  that  the  tribunal 
which  is  too  imbecile  to  grant  the  remedy,  poflefles  not  the 
jurifdidlioa : 

Becaufe,  further,  in  the  exercife  of  this  power,  every 
elector  will  be  inevitably  driven  to  the  alternative  of  for-* 
feiting  his  fufFrage,  or  expofing  particularly  the  nature, 
extent  and  evidences  of  his  title,  and  thereby  perhaps  de- 
flroy  the  fecurity  of  property,  and  occafion  an  endlefs 
Iqene  of  general  litigation. 

Becaufe  k  would  enable  the  majority  of  this  board,  by 
a  confpiracy  among  themfelves,  to  be  continued,  or  to  in- 
troduce their  creatures  into  olEce,  in  open  contempt  and 
defiance  of  a  majority  of  electors  : 

And,  finally,  becaufe  fuch  power  is  wholly  incompatible 
with  the  rights,  liberty  and  fafety  of  the  inhabitants  of 
this  city. 

In  the  exercife  of  that  authority  they  have  acled  partial- 
ly, becaufe,  in  the  cafes  of  truft  eftates,  in  favor  of  the 


65 

one  candidate  they  have  decided  for  the  admifTion  of  th^ 
votes,  while  with  refpe<Sl  to  the  other,  the  truft  cftates 
werecqual  in  degree,  and  entitled  to  the  fame  remedy  before 
an  equitable  forum.  Tliey  have  neverthelefs  totally,  and 
inconfiftentiy  rejected  them. 

They  have  a£led  precipitately,  becaufe  with  refpe£l  to 
one  ward,  they  abruptly  retired.  And  notwithlbanding 
further  teftimony  was  offered  to  fupport  the  rights  and 
qualifications  of  the  electors,  they  decided  the  fate  of  the 
ele£lion,  without  affording  an  opportunity  for  the  produc- 
tion of  that  teftimony. 

Thev  have  adlcd  in  oppofition  to  the  weight  of  evidence 
— ^inafmuch  as  witli  refpe6l  to  the  fifth  ward.  The  pay- 
ment of  the  confideration  money  for  the  eftate,  upon  which 
thereje£led  ele£lors  gave  their  fuffirages,  was  clearly  proved, 
to  them  *,  and  becaufe  the  value  of  that  eftate  was  eftablifh- 
ed  by  a  large  majority  of  competent  and  difinterefled  wit- 
nelTes. 

They  have  afted  contrary  to  law,  for  all  and  every  of  the 
reafons  aforefaid. 

They  have  alfo  a£ted  in  direft  contravention  of  law,  by 
their  novel  and  extraordinary  refolution,  That  no  man  is 
entitled  to  vote  upon  a  freehold  estate,  becaufehe  purchafed 
it  for  that  purpofe  ! 

We  confidently  maintain  that  by  the  laws  of  the  land, 
every  citizen  poflcfTed  of  a  freehold  of  the  value  of  twenty 
pounds,,  beyond  incumbrances  in  this  city,  obtains  thereby 
the  eleftive  franchife,  that  this  board  has  not  the  authority 
to  inquire  into  the  motives  which  induced  the  purchafe  of 
his  property — and  that  his  right  derived  from  the  charter 
of  this  city,  and  the  laws  of  the  ftiate,  can  only  be  abridged 

I 


66 


or  modified  by  an  tlO:  of  the  legiflature.  In  depriving  up- 
wards of  one  hundred  freeholders  of  their  legal  rights  of  fuf- 
frage,  this  board  has  exercifed  a  ftretch  of  authority  arbitra- 
ry, unparalleled,  and  highly  dangerous  to  the  rights  of  the 
inhabitants  of  this  city. 

December,  14th,  1801, 
JOSHUA  BARKER,        HENRY  VERVEELEN, 
MANGLE  MINTHORNE,  Wm.  W.  GILBERT. 

It  now  became  a  fubjeft  of  rumour,  that  the  federal 
members  had  formed  the  refolution  to  abandon  their  feats, 
in  the  Council,  and  to  leave  the  city  to  its  fate.  That  by 
fufpending  all  public  burmefs,.and  withholding  the  appro- 
priation of  funds,  an  inftant  termination  would  be  put  to 
our  inftitutions  of  police.  A  determination  fo  wild  and  ex- 
travagant even  in  the  gentlemen  who  conceived  it,  was  with 
difficulty  credited.  But  time  and  enquiry  gave  confirmation 
to  the  report.  From  a  fpirit  of  conciliation,  and  with  a 
view  of  prefcrving  the  tranquililry  and  harmony  of  the  city, 
the  mayor  propofed  without  delay  the  mod  liberal  terms  of 
accommodation.  It  was  recommended  that  all  the  gen- 
tlemen, whofe  feats  were  contefted,  fhould  poftpone  their 
attendance,  until  their  re fpe61:ive  rights  fhould  be  determin- 
ed. That  to  prevent  the  procraftination  attendant  upon 
law  proceedings,  an  accurate  flatement  of  the  cafes  fhould 
be  made,  and  fubmitted.  immediately  to  the  judgment  of 
the  Supreme  Court.  That  on  account  of  the  urgency  of 
circumflances,  a  decifion  fhould  be  requefled  in  the  early 
part  of  January  term,  and  that  in  the  mean  time  no  queflion 
which  had  the  femblanca  of  party  fliould  be  taken  in  that 
board. 

No  anfwer  having  been  received  to  fuch  propofitions,  in 
order  to  bring  matters  to  that  flate  of  certainty  which  be- 
GAme  more  and  more  necefTary  to  the  public  repofe,  a  meet- 


«7 

ing  of  Common  Council  was  fummoncd  for  tlie  i8th  of 
December.  The  republican  members  punclually  attended, 
and  not  a  fmgle  federal*  gentleman  appeared  ;  at  length  all 
fufpenfe  was  terminated  by  the  following  letter,  which  was 
received  and  dirc6led  to  the  Mayor : 


INSTRUMENT  OF  SECESSION^ 

Sir, 

Having  too  much  reafon  to  think  that  a  deliberate  plan 
has  been  formed  to  violate  the  eflabliflied  rights  and  ufageA 
of  the  corporation,  both  by  obtruding  upon  them  perfons, 
as  members  of  it,  whom  the  Common  Council  have  alrea- 
dy determined  to  be  not  duly  elected  s  and  alfo,  by  your 
claiming,  and,  as  wc  fuppofe,  ufurping  a  ri»ht  to  vote  in 
cafes  where  it  never  has  been  exercifed  by  your  predecef- 
fors  j  we  feel  it  our  duty  to  declare  our  intention  to  oppofe 
thefe  meafures,  and  to  fupport  what  we  confider  our  juft 
rights.  A  fpirit  of  conciliation,  and  a  wifli  to  avoid  the 
inconveniencies  that  might  refult  from  the  fufpenfion  of 
public  bufinefs,  would  have  induced  us  to  form  a  tempora- 
ry arrangement,  confident  with  the  prefervation  of  thofe 
rights,  until  fuch  time  as  the  queftions  that  had  arifeii 
might  receive  a  legal  dccifion.  Wc  are  forry  to  find  that 
our  efforts  for  this  purpofe  have  been  ineffectual,  and  that 
you  perfift  in  confidering  Meflrs.  Cornelius  C.  Roofevelt 
and  Peter  H.  Wendover  as  members  of  the  Common 
Council.  After  the  refolution  of  the  board  upon  that  fub- 
je6t,  it  would  be  improper  for  us  to  recognize  or  adl:  with 
them  as  fuch,  unlels  their  pretenfion  fliould  receive  a  legal 
fan6lion.  We  Jhally  therefore^  before  our  meeting  ivith  you  in 
Common  Council^  expeEl  to  be  fatisfed  that  thofe  gentlemen  -wilt 
not  be  received  as  members  of  the  beard  againfl  our  confent^  un- 
*  The  public  will  understand  the  sense  in  which  I  use  the  term  fcd<ra*. 


6-8 

f.i/  their  right  to  feats  in  it  has  hee?i  judicially  ejlahli/hed.  We 
Jhall  alfo  expe5l  that  the  uniform  pr a 5i  ice  of  the  hoard  luill'be 
conformed  to,  refpeBing  the  vote  of  the  prefidi?rg  officer,  until  a 
l/gal  decifion  to  the  contrary  pall  have  been  obtained.  It  is 
with  reludance  that  we  fubmit  to  the  neceffity  of  addreff- 
ing  you  in  this  manner.  We  are  fefifible  that  evils  of  conft^ 
derahle  magnitude  may  refult  from  the  prefent  flate  of  things  ; 
l^ut,  as  we  are  confcious  that  wc  are  doing  our  duty  and 
defending  our  rights,  we  confole  ourfelves  with  the  reflec-» 
tion  that  thofe  evils  will  not  juftly  be  imputed  to  u&. 

We  are,  with  due  refpe(3:.  Sir, 

Your  obedient  fervants, 

JOHN  B.  COLES,  1>HILIP  BRASHER, 

ROB.  LENOX,  JOHN  NITCHIE. 

SELAH  STRONG,         JOHN  P.  RITTER, 
JAMES  ROOSEVELT,    PH.  TEN  EYCK. 


It  was  thus  imagined  by  thofe  gentlemen,  that  by  hold- 
ing a  rod  in  terrorem  over  the  heads  of  the  republicans,  and 
that  by  menacing  them  with  a  profpe61:  of  diforder  and 
confufion,  they  would  at  length  be  coerced  into  compli- 
ance. The  city  watch  was  to  be  aboliflied — the  lamps  ex- 
tinguifhed' — darknefs  and  difmay  pervade  our  ftreets — the 
midnight  robber  and  the  defperate  affaffin  were  to  prowl  for 
prey  and  plunder  unmolefted — without  a  magiftracy,  and 
deftituteof  police,  impunity  was  to  be  granted  to  every  a^fc 
of  deiperation,  and  the  hand  of  amnefty  extended  to  every 
enormity  and  every  crime.  The  houfelefs  child  of  pover- 
ty— the  hoary-headed  grandfire — decrepid  matron — and 
•ftill  more  helplefs  infant  of  defpair,  all  born  to  happier  days 
and  brighter  profpe6ts,  were,  with  unfeeling  apathy  and 
x;old  indifference,  to  be  fuddenly  baniflied  from  the  only  ha- 


^bitation  and  flcnder  pittance  wliicli  public  charity  had  giv- 
en them  ;  feeble  with  infancy,-  infnmity  or  age — oppreiled 
with  hunger — the  flood  of  life  congealed  by  winter's  freez- 
ing cold — to  periOi  at  the  gate  of  foaie  more  favored,  n©t 
more  defcrving  being. 

For  fome  time  at  leafft  tliofe  evils,  perhap?,  might  not 
have  been  realifed  ,  the  patriotlfm  of  the  watch,  more  Hea- 
dy than  that  of  the  deferting  magiftrates,  would  have  in- 
duced them  to  adhere  to  their  pofts*,  and  look  to  the  re  flo- 
tation of  public  tranquillity  for  their  accuflomed  compenfa- 
tion  ;  but,  at  a  feafon  of  the  year  when  every  want  of  life 
becomes  mod  indifpcnfible  and  prefling,  was  it  convenient, 
or  was  it  poffibb  for  this  ufeful  body  of  citizens,  however 
willing  in  intention,  to  make  fuch  facrifices  at  the  fhrinc 
of  duty  ?  admitting  the  mod  favorable  pofture  of  affairs 
that  the  public  guard  could  have  been  maintained.  "What 
was  to  become  of  the  city  poor  ?  Deferted  by  the  men 
who  had  always  (lilcd  themfelves  the  Jleady  advocates  of  or- 
dery  certain  it  was,  that  the  provifions  for  the  alms-houfe 
could  not  laft  throughout  the  ilgorous  extremity  of  win- 
ter. 

It  was  now  the  only  alternative  to  fupport  the  ncccffary 
inflitutions  of  the  city  by  voluntary  contribution,  or  permit 
the  contemplated  fcene  of  peril  and  diforganization  to  en- 
fue.  Did  the  republicans  defire  the  little  triumph  of  a  par- 
ty ?  Could  they  have  viewed  with  pleafure  the  punifhment 
of  their  weak  and  thoughtlefs  opponents  ?  Or,  did  they 
fteadily  purfue  the  fubflantial  welfare  of  their  country  ? 
Had  they  wi'ihcd  the  gratification  of  a  triumph,  they  might 

*  It  is  justice  to  this  useful  body  of  citi/cns  to  stale  thrxt  snoli  was  their 
detcnninalion  ;  tlier  would  taitl^uilly  Iiavc  pcrforiiicii  their  duties.  Proud, 
haughty  and  insolent  aristocrat!  learn  to  reverence  liic  virtues  of  the  peo- 
ple. VVhat  a  reproacli  to  the  deseilin;,'  magistrates  ii  conveyed  by  lUis  cit- 
«uni!^tancc! 


70 

hare  fat  filent  fpe^lators,  and  with  eyes  unmoved  beheld 
the  tempeft  of  dcftruftion  gather,  ripen,  burft  with  ven- 
geance on  the  heads  of  their  wretched  and  inconfiderate 
antagonifts.  There  was  not  room  for  choice.  Without 
hefitation  fome  of  our  moft  refpedable  citizens  inftantly 
jnterpofed  the  mean's  of  relief.  Republicans  were  anxious 
to  fhare  in  the  honours  of  patriotifm.  To  their  immortal 
honour  let  it  be  remembered,  that  the  only  disappointment 
experienced  on  this  emergency  was  by  thofe  who  wiflied  to 
contribute  their  funds  or  their  credit,  and  had  not  the  op- 
portunity. A  fufEcient  capital  was  fpeedily  furnifhed  to  fup- 
ply  the  wants  of  the  winter,  and  fliould  the  queftions  now 
depending  remained  unfettled  in '  the  fpring,  the  citizens 
may  reft  afiured,  that  whatever  other  inconveniencies  may 
be  fuftained,  the  neceflary  police  eftablifhments  of  the 
public  fhall  be  preferved  until  the  bleffings  of  harmony  and 
regular  government  are  fully  reftored. 


LYSANDER. 


No.  Vil. 


MEANS  OF  REDRESS. 


All  safety  rests  on  honest  counsels :  these 
Immortalize  the  statesman,  bless  the  itate. 

YouN-«, 


Determin'd  hold 


Your  independence  ;  for  that  once  destroy'd, 
Unfounded,  freedom  is  a  morning  dream 
That  flits  atrial  from  the  spreading  eye. 


Thomsov. 


Jt  would  be  of  little  fervicc  to  point  out 
the  exigence  of  evils,  without  entering  into  a  confideration 
of  the  remedies  moft  proper  to  be  adopted.  In  detediing 
abufes,  without  devifmg  the  redrefs  which  ought  to  be  ad- 
jniniftered,  we  perform  but  a  fmall  proportion  of  our  du- 
ties. The  moft  valuable  part  is  neglected  or  forgotten.  At 
a  crifis  of  affairs  fo  important  as  the  prefent,  we  are  e- 
qually  called  upon  to  deliberate  and  to  ad.  It  is  neceflary 
that  a  decifive  refolution  fhould  be  taken,  and  in  the  lang- 
uage of  Junius  let  it  be  remembered,  "  there  is  none  fo 
likely  to  be  fupported  with  firmnefs,  as  that  which  has 
been  adopted  with  moderation." 

The  great  obje([t  of  our  endeavours  fiiould  be  to  amend, 
and  not  to  deflroy — to  repair,  and  not  to  proftratc  a  fabric 
which  may  be  rendered  truly  valuable.  We  fliould  care- 
fully diftinguifh  between  the  abufes  of  an  inftitution  poflef- 
fed  of  many  excellencies,  and  one  that  is  radically  and  uni- 
verfally  defc61ivc.    The  charter  of  this  city  is  fufccptiblc 


of  being  rendered  an  inftrumentof  cxtcnfive  and  permari- 
ent  utility.  It  is  the  ground  work  of  many  of  our  moft 
neceflary  and  falutary  cftablifliments  j  eftablifhments,  unclef 
which  we  have  long  continued  to  fiourifh  and  to  profpen 

If  I  may  be  indulged  in  the  ufe  of  the  metaphor,  I  con- 
£der  the  charter  as  an  houfe  eminently  calculated  for  the 
fafety  and  convenience  of  its  inhabitants.  Though  built 
upon  a  foHd  foundation,  time  has  difcovered  fome  defeats 
in  th^  outlines  of  its  plan,  and  rendered  amendments  ne- 
ceflary for  its  permanent  prefervation.  Experience  and 
an  advanced  tafte  in  the  fcience  of  archite£lure,  have  fug- 
gefted  certain  improvements,  beneficial  to  its  occupantSo 
It  is  certainly  accordant  with  the  didtates  of  wifdom,  that 
fuch  amendments  fhould  be  made — they  are  alterations  of 
additions  to  the  ftru£lure  of  the  edifice,  calculated  to  ren-* 
der  it  more  commodious,  valuable  and  fscure. 

He  is  no  friend  to  the  exiftence  of  an  inllitution,  who  h 
anxious  to  retain  the  abufes,  to  which  it  is  fubjecSted.  In 
its  prefentfhape,our  charter  is  fickly  and  effeminate.  With- 
out the  guardian  interference  of  the  patriot,  it  does  not 
promife  a  long  duration.  From  a  continued  feries  of  ufur- 
pations,  its  principles  have  been  diftorted,  and  fome  of  its 
moft  material  provifions  entirely  difregarded.  Inftead  of 
affording  protection  and  fecurity  to  the  rights  of  the  citi- 
zens, it  has  been  converted  into  an  engine  to  deprive  them 
of  their  moil  valuable  privileges* 

The  principal  evils  under  which  we  at  prefent  labour,- 
may  be  clafltid  under  the  following  divifions : 

I.  A  defective  and  partial  reprefentation  in  the  Conar- 
mon  Council  of  the  city. 


1$ 

II.  The  ufurpation  of  authority,  with  refp€<Sl:  to  thfi- 
Scrutiny  of  cle6lions  ;  and, 

III.  The  want  of  a  fuitable  provifion  to  fecure  the  ap^ 
pointment  of  freemen,  and  to  render  their  political  exill- 
ence  independent  of  the  v/ill  of  the  ofliccrG  of  the  corpo- 
lation. 

The  city  reprefentation  is  at  prefent  aknoft  exclufivcly 
■confined  to  the  freeholders  ;  during  the  late  charter  elec- 
tion, only  150  perfons  voted  in  the  capacity  of  freemen. 
This  is  a  pracl:ice  equally  repugnant  to  the  provifions  of 
the  charter  and  to  the  principles  of  our  government.  The 
right  of  eledion  is  the  life  of  liberty — it  is  the  root  of  eve° 
ly  other  privilege — the  moment  it  is  loft,  civil  freedom  be- 
comes entirely  extin6^:,  and  the  citizen  reduced  to  a  date  of 
abje6l  fervility  and  dependence. 

It  is  the  fundamental  principle  of  reprefentativc  govern- 
fnents,  that  the  people  are  bound  by  laws,  in  refpec^  of  the 
confent  which  they  are  fuppofed  to  give.  This  confcnt  ie 
.^xpreffed  by  the  voice  of  their  reprefentative.  Taxatioa 
and  reprefentation  are  confidered  as  correlative — he  who  is 
bound  to  contribute  to  the  exigencies  of  the  public  is  enti- 
tled to  reprefentation  in  the  body  by  which  thofe  contribu- 
tions are  affelTed. 

No  fufTicient  reafon  can  be  afligned  why  the  elective 
/ranchife  fliould  be  confined  to  the  freeholders.  It  is  not 
recognifed  by  any  found  principle,  nor  is  it  to  be  found  in 
any  law.  The  city  government  was  introduced  for  the  ge-- 
neral  profperity  of  the  citizens  ;  every  inhabitant  is  equally 
bound  by  its  regulations,  and  fubje6l  to  its  ordinances. 
The  powers  of  the  Common  Council  are  complicated  and 
cxtenfive  ;  they  are  not  confined  to  the  fuperintendance  of 
real  T5roperty — they  extend  to  every  fubje6l  and  every  4c- 


74 

yartmcnt  of  police.  Every  houfeholdcr  and  inhabitaui  is 
perpetually  fubje£t  to  the  ordinances  of  the  Common  Coun<- 
cil,  and  is  therefore  entitled  to  the  right  of  being  repre- 
fented. 

It  has  indeed  been  artfully  infmuatcd,  that  it  is  proper 
the  right  of  reprefentation  fhould  be  confined  to  freehold- 
.ers,  becaufe  it  is  their  property  which  is  taxed  by  the  Com- 
mon Council.  But,  let  it  be  confidered,  that  the  power  of 
aflefhng  taxes  is  only  a  fmgle  branch  of  their  general  fuper- 
intendance  j  there  are  an  infinitude  of  regulations  in  which 
the  citizens  at  large  are  equally  interefted.  Befides,  the 
Common  Council  taxes  every  houfeholder  as  well  as  every 
freeholder ;  and  if  our  decifion  depended  upon  the  fingl? 
circumftance  of  taxation,  the  conclfuiaon  would  be  evident: 
in  favor  of  the  general  extenfion  of  the  right.  It  is,  more- 
over, worthy  to  be  obferved,  that  there  are  many  iiiterefts 
in  land  entitled  to  equal  attention  with  the  freeholds.  Much 
of  our  property  lies  in  long  leafes  ;  the  houfes  are  built  and 
the  improvements  made  by  the  tenant-,  his  interefl  Is 
prefent^  that  of  the  landlord  remote.  It  is  the  former,  and 
TxOt  the  latter,  who  is  taxed.  Again,  even  admitting  that 
taxes  are  invariably  laid  upon  the  freeholds,  yet  the  tenant 
is  equally  interefted  and  equally  entitled  to  reprefentation  ; . 
for,  by  the  general  practice  of  the  city,  the  tenant  pays  the 
taxes. 

But  the  charter  is  explicit  upon  the  fubje6i: ;  it  invefls 
the  eleftive  franchife  in  the  freemen  as  well  as  the  free- 
holders. Now,  Avho  are  the  freemen  of  the  city,  except  its 
regular  houfeholders  and  inhabitants  ?  Not  fo,  it  is  retort- 
ed j  only  fuch  as  the  mayor  and  four  aldermen  think  pro- 
per to  appoint. 

Impoffible,  that  fuch  fhould  be  the  genuine  intention  of 
^^e  charter  .J  but  if  fo^  it  is  time  that  the  evil  fhould  be  coiv- 


15 

yciSled.  'Ihe  rights  of  every  citizen,  {landing  under  th« 
fame  circumftances,  muft  be  equal.  It  is  unjuft  that  a 
power  fliould  exifl  to  rcfufe  to  one  what  is  granted  to  ano- 
ther. Such  a  fyllem  of  favoritifm  and  partiaHty  is  too 
odious  to  be  endured  by  a  people  who  hdve  the  mod  dif- 
tant  conceptions  of  liberty. 

As  the  charter  now  ftands,  it  is  liable  to  continual 
abufe.  Without  a  legiflative  interference,  the  ric^hts  of  a 
majority  of  the  inhabitants  muft  always  remain  at  the  mer- 
cy of  a  few  of  the  magiftrates. 

It  is  completely  within  their  power  to  confine  .the  re- 
prefentation  to  the  freeholders,  or  extend  it  at  their  plea- 
fure.  This  authority  is  equally  formidable  to  the  freehold- 
ers, and  to  the  inhabitants  at  large.  It,  in  efFe£l,  eftablifh- 
es  a  dangerous  controul  over  all.  On  the  one  hand  they 
may  refufe  to  appoint  freemen.  Thofe  already  made,  mufh 
yield  to  death.  The  whole  order  of  men  becomes  extin<St^, 
and  ^the  powers  of  the  city  confined  to  the  proprietors  of 
land.  On  the  other  hand,  it  is  equally  in  their  power  to 
confer  the  freedom  of  the  city  upon  the  moft  abandoned, 
and  diflblutc  vagrants,  without  limitation,  and  thereby 
coerce  the  freeholders  into  a  compliance  with  their  views. 

While  the  eledlive  privilege  is  confined  to  freemen,  the 
power  of  appointing  them  is,  in  other  words,  the  power  o£ 
appointing  voters.  It  is  an  extraordinary  pra£l:icc  that  a 
legiflative  body  fhould  defignatc  the  perfons  who  are  to 
cle6l  its  members. 

Whenever  a  mayor  and  four  ildermcn  concur  in  fenti- 
mcnt,  they  may  appoint  whomfoevcr  they  plcafe  as  free- 
men. It  is  therefore  completely  within  their  power  to  de- 
cide the  fate  of  chartei  cleiiions.    Such  powder  may  be  gra-" 


ftfying  fo  ttie  unthinking  parti z an.  It  mufl  evea?  be  oBnox*- 
ious  to  the  enlightened  and  independent  patriot, 

A  few  individuals  may  fay  to  one  citizen,  you  {hall 
be  a  freeman,  becaufe  you  will  vote  in  our  favour/'  To 
another,  "  Thou  (halt  not  be  free,  becaufe  your  fuffrag? 
would  be  given  againfl  us."  Let  us  not  rejoice  at  the  exift- 
cnce  of  fuch  power,  becaufe  to-day  it  may  comport  with 
Our  momentary  interefts.  There  is  always  an  evil  in  the 
violation  of  principles  •,  remember  that  it  furnilhes  a  dan- 
gerous precedent,  which  to-morrow  may  be  exercifed 
again  ft  us. 

There  is  only  one  remedy  to  eradicate  the  evil;  that  is, 
to  render  elections  independent.  The  mifchiefs  which 
have  happened  already  may  be  repeated  hereafter,  unlefs  ef- 
fedlual  mcafures  are  taken  to  prevent  them.  It  is  neceflary 
that  the  privileges  of  electors  fliould  be  defined  by  law, 
and  no  longer  dependent  upon  the  precarious  provifions  of 
the  charter.  Let  it  be  folemnly  afcertained  who  are  enti- 
tled to  the  right,  and  let  fuch  right  be  exercifed  without 
the  pofTibility  of  becoming  defeated  by  the  violence  of  par- 
ty, or  the  defperate  attempts-  of  any  ihterefted  body.  Un- 
til fuch  falutary  regulation  takes  place,  we  muft  remain  in  a 
ftate  of  uncertainty  and  infecurity — no  power  inferior  to 
the  Icgillature  is  fufficient  for  the  purpofe — they  alone  can 
afford  us  fubftantial  and  beneficial  redrefs. 

2.  The  power  of  fcrutiny  which  has  lately  been  exercif- 
ed, is  fo  manifeftly  repugnant  to  every  rational  and  fober 
principle  as  to  render  a  ferious  difcuflion  of  the  fubjedt  an* 
infult  to  the  underftanding  of  the  public.  It  would  be, 
therefore,  equally  unneceffary  and  improper  to  repeat  the 
obfervations  which  have  already  been  made.  Let  it  be  re- 
membered, that  there  never  was  a  power  which  afford-*- 


71 

ed  greater  licenfe,  and  greater  temptations  to  abufe.- 
It  is  a  power  ungoverned  by  principle,  uncontroulcd  by  de- 
finite and  rational  rules  of  decifion,  wholly  arbitrary  and' 
difcraionary  in  its  exercife,  and  enabling  the  Common 
Council,  from  views  and  motives  prepenfc,  to  determine 
the  fate  of  every  ele(Slion  at  their  plcafure.  It  is,  there- 
fore, indifpenfibly  neceflary  that  a  pofitive  a6l  of  the  legif- 
lature  ftiould  be  pafled,  prohibiting  its  exercife  in  future.  I 
alfo  ftrenuoufly  recommend  to  my  fellow-citizens,  as  the 
furcft  fafeguard  of  their  rights,  that  they  fliould  exert  their 
laudable  endeavours  to  obtain  the  legifl^tive  fan£lion  in  fa- 
vor of  the  following  provifions  :  ift.  That  the  eledive  fran- 
chife  fliall  be  fecured,  and  extended  to  all  the  regular  inha- 
bitants of  the  city,  within  fuch  rational  and  liberal  limita- 
tions as  may  be  confidered  necefhiry  for  the  public  good. 
2nd.  That  all  elections  fhall  be,  in  future,  by  ballot.  3d. 
That  no  citizen  fhall  be  permitted  to  vote  out  of  tlie  ward 
in  which  he  refides,  4th.  That  the  right  of  challenge  be 
given  to  every  ele£lor.  And,  5th.  That  three  infpedors, 
or  prefiding  ofBcers,  be  appointed ;  that  all  clialknges  be 
made  at  the  time  of  the  election,  and  decided  by  the  in- 
fpe6lors,  under  fuch  regulations  as  the  legiflature  may- 
adopt  J  and  laftly.  That  their  returns,  made  in  puifuanc* 
«f  law,  be  final  and  conclufive. 

3d.  By  the  letter  of  the  charter,  no  man  is  permitted  to 
purfue  the  occupations  of  life,  under  a  certain  and  continu- 
al penalty,  without  firft  receiving  the  freedom  of  the  city. 
This  privilege  refls  entirely  in  the  difcretion  of  a  mayor 
and  four  aldermen  ;  whenever  they  engage  on  different  fides 
of  politics,  it  generally  happens  that  it  cannot  be  obtained  ; 
of  courfe,  the  citizen  is  reduced  to  the  necefuty  of  fufpend- 
iilg  his  bufmefs,  or  of  incurring  repeated  and  inceilimt  pe- 
aailt4e«  j  if  it  ig  advlfeable  to  rctaiu  this  branch  of  our  iHfti- 


tutions,  either  as  a  fource  of  revenue  ©r  for  any  other  pur« 
pofe,  juftice  would  dictate  that  it  fhould  be  legally  defined 
who  are  entitled  to  the  privilege  ;  and  that  means  fhould  bs 
adopted  to  fecure  its  being  granted  to  the  individuals  who* 
are  thus  entitled  to  it. 

•  Such  only  are  tlie  remedies  proportioned'  to  the  extent 
and  nature  of  the  mifchiefs.  Subordinate  meafures  would 
be  trifling  with  the  rights  and  intercfts  of  the  public.  If  we 
arc  entitled  to  relief,  let  it  be  effectual.  Let  it  be  calculated 
to  enfure  a  ftate  of  permanent  freedom,  order  and  tranquil-^ 
ity.  Before  I  conclude  the  prefent  effay,  permit  mc  to  con- 
Cder  the  leading  objections  to  a  reformation,  which  arc 
ufually  advanced. 

I.  The  first  great  argument  which  is  invariably  re- 
forted  to,  and  indilcriminately  appHed,  refls  upon  the  per- 
ils and  uncertainty  which  are  faid  to  be  apprehended  from 
every  change.  It  has  long  been  a  fafliionable  pra(2:ice  to 
inveigh  againfl  innovations.  Old  manners  and  ancient  hab- 
its, are  the  perpetual  theme  of  blind  and  undiftinguifhing 
adulation.  The  unfledged  politician  and  the  flippant  youngf- 
ter,  who  can  neither  boafl  the  years,  nor  the  maturity  of 
inanhood,  are  taught  with  the  rcadinefs  of  parrots,  and 
with  equal  difcretion,  to  pronounce  the  cabaliftical  name 
of  antiquity,  in  fupport  of  the  greateft  abufes  and  abfurd- 
ities.  The  eye  of  argument  is  diverted  from  glancing 
upon  the  genuine  merit  of  fubjects,  as  if  errors  were  con- 
fecratedby  the  revolutions  of  time — or  outrage,  impofture 
and  impofition,  fand:ioned  or  concealed  by  the  accumula- 
ted rufl  of  ages  ! 

"  If  the  age  of  inftitutions  is  the  moral  or  political  flandard' 
gf  their  utility,  let  us  travel  to  the  rcmoteft  periods.  We 
fflould  derive  our  habits  and  oiir  ni'anners  from  the  earliefl 
ti;iies.    We  fhould  ftudy  the  laws  and  maxims  of  the  ante- 


*19 


6iluvian8— record  their  facrecl  apopHthcgms  of  wlfdom-^ 
treafure  every  precious  veftige  and  rclie  of  tlieir  pradliccs,  ■ 
and  render  the  men,  for  whofc  wickednefs  the  world  was " 
deluged,  the  univerfal  legiilators  of  mankind. 

Let  us  inquire  of  thefe  idolizers  of  antiquity,  the  precife 
fenfe  in  which  they  confider  innovation  ?  Shall  we  refufe  to 
heal  a  wound,  becaufe  its  pain  has  been  long  endured  ? 
Mud  error  or  opprefilon  be  confecrated,  becaufe  they  have 
obtained  an  afcendency  for  a  length  of  days  ?  Are  the 
fciences  and  the  arts,  and  all  the  inditutions  of  life  to  re- 
main for  ever  ftationary  ?  Shall  they  not  vary  with  the 
increafe  of  knowledge,  and  purfue  the  progrefs  of  fociety  ? 
The  merits  of  an  inditution  depend  not  upon  its  age  or  its 
novelty,  but  the  beneficial  effects  by  which  it  is  accompa- 
nied, andito  adaptation  to  the  fituation  and  circumftances 
of  a  community.  Eftablirnments  founded  in  wifdom,  will 
generally  remain  valuable.  Experience  will  never  fail  to. 
furnifh  the  evidences  of  their  utility  ;  but  Experience,  on 
the  contrary,  will  equally  bear  witncfs  againft  error,  and 
dire61;  us  to  purfue  the  path  of  judicious  reformation. 
Every  important  truth,  every  valuable  acquifition  to  the 
general  bank  of  fcieiice,  may  be  confidered  as  innovations  ; 
and,  if  innovations  were  to  have  been  prohibited,  mankind 
would  have  continued  enveloped  for  ever  in  the  darknefs 
of  ignorance  and  barbarifm.  Galileo  ;vas  an  innovator  in 
aflronomy — Boerhave  and  Hunter,  in  medicine — ^the  dif-- 
coveries  o(  Newton  were  innovations  in  philofophy — the 
American  Revolution  an  innovation  in  politics. 

Every  new  law  is  an  innovation — all  legiflatures  who 
perform  their  duties  arc  innovators.  In  examining  the 
^ruc  merits  of  a  moral  or  political  propofition,  the  true 
^uieftion  to  be  difcuffcd  is,  not  whether  it  is  antieut,  oc 


to 


-whether  it  is  n^w ;  but,  will  it  be  produftive  oF  gc«eri^ 
-utility  ? — is  it  calculated  to  promote  the  liberties,  the  happi- 
nefs  and  the  profperlty  of  a  people  ?  It  is  one  of  the  firft: 
duties  of  life  to  profit  by  the  lelTons  of  experience.  When- 
ever it  is  found  that  political  fyftems  no  longer  anfwer  the 
purpofes  of  their  inflitution — whenever  it  is  difcovered 
from  practice  that  exifting  eftablifhments  are  inimical  to 
the  interefts  of  a  community,  it  becomes  the  right  of  the 
people,  and  the  duty  of  the  patriot,  to  introduce  fuch  pro- 
yiCons  as  are  efTential  to  the  general  welfare. 

It  has  invariably  happened  in  the  hiftorypf  every  focle- 
ty,  that  the  grcatefl:  abufes  have  poflefled  ftrenuous  fup- 
porters,  and  powerful  advocates.  There  is  always  a  clafs 
of  men  who  derive  private  emolument  from  public  injuries 
— the  lofs  of  the  community  is  their  gain.  It  is,  therer- 
fore,  to  be  expe£led  fo  long  as  interefl:  is  an  incentive  pre- 
dominant over  patriotifm.,  that  thofe  who  are  benefitted  by 
the  continuance  of  abufes  will  purfue  every  artifice,  and 
exert  their  utmoft  influence,  to  deter  the  people  from  the 
purfuit  of  falutary  meafures. 

Unblest  by  virtue,  ;:joverimierit  a.  l«ague 
Becomes,  a  circlinj  juiito  of  the  great, 
To  rob  by  law."  * 

From  this  fource  originates  the  oppofition  which  pcrpc-^ 
dually  incumbers  the  path  and  impedes  the  footfteps  of 
Reformation.  Antiquity  is  interpofed  as  the  powerful 
Shield  for  the  protecSlion  of  evils  ;  Time  is  the  ufual  talif- 
jnan  for  affording  perpetuity  to  Error  and  impunity  to 
<juilt;  the  moft  valuable  improvements'  are  fligmatized 
■with  the  name  of  innovations.  Truth  is  confidered  as  the 
.offspring  of  impofture,  and  he  who  nobly  dares  to  cherifh 
^ithe  interefts  of  his  country  is  proclaimed     enthufiaft,  dc* 


rlclcd  as  a  madman,  or  branded  with  the  odious  appellation 
of  an  incendiary. 

Neither  penonal  confiderations  nor  timorous  reflections 
fliould  divert  us  from  the  calm,  fteady,  and  confcientious 
purfuit  of  reditude — combining  penetration  wltli  fortitude^ 
oppofing  reafon  and  perfeverance  to  the  refiftance  of  the 
corrupt  and  the  clamours  of  the  interefted.  Public  intcrefl: 
fhould  conftitute  the  polar  (tar,  for  the  regulation  of  our 
conduct.  Inflexibly  adhering  to  the  dictates  of  principle, 
it  is  the  firft  duty  to  enquire  what  meafures  are  moft  extcn- 
Cvely  beneficial.  It  is  the  next  with  firmnefs  to  purfue  them. 

II.  Another  (landing  objccStlon  againft  reform,  is  de- 
rived from  the  fuppofed  inviolability  of  charters.  This  ar- 
gument is  poflcflcd  of  fome  fpecioufnefs,  and  is  therefore 
entitled  to  an  anfwer. 

Charters  (faid  Burke,  in  the  days  of  his  political  integri- 
ty) are  kept,  when  their  purpofes  are  maintained.  They  arc 
violated,  when  the  privilege  is  fupported  againit  its  end  and 
its  objedl."  Whatever  fandity  we  may  a-ttribute  to  charters, 
ftill  there  are  other  rights  entitled  to  fuperior  confideration. 
What  is  a  charter  but  a  grant  of  certain  rights,  privileges 
and  powers  to  a  particular  body  of  men  ^  You  tell  me  the 
moment  the  grant  is  made,  it  is  entitled  to  ftri6l  obferv- 
ance — admitted  as  a  general  rule.  I  afk  you  whether  it  is 
not  attended  with  exceptions  ?  Suppofe  a  charter  fliould 
become  injurious  and  deftrudive,  flill  it  is  the  privilege 
of  the  corporators."  And  will  you  fet  up  the  privileges  of 
the  corporators  againfl  the  rights  of  the  whole  community  ? 
Suppofe  again,  that,  from  a  change  of  circumftances  or  any- 
other  reafon,  tlie  provifions  of  a  charter  fhould  defeat  the 
very  purpofes  of  its  inftitution. — Will  you  tell  me  that  the 
privileges  of  the  corporators  are  violated  by  a  guardian  at- 
tiention  to  their  intercfts  ?  What  is  a  corporation  — it  is. 
a  body  poUtic,  pofl'einng  an  artificial  exiftcncc.    It  is  tjjt 


tlvAA  and  crefiture  of  the  ftate.  The  power  by  which  It  ik 
created^  can  always  controul,  amend  or  dillblve  it.  We 
ihould  ftcadily  look  to  the  end  in  view,  and  conlider  a  charter 
as  the  inflrument  for  the  attainment  of  that  end.  If  fuch 
inftrument  is  found  to  be  inefre^Lual  for  the  accumplifh^ 
ment  of  the  purpofe  intended,  it  becomes  neceiTary  that 
fuch  alterations  fhould  be  mads  as  will  render  it  confift- 
cnt  with  the  views  for  which  it  was  efl;abii{lied. 

But  it  is  fald  to  be  dangerous  to  admit  of  legiflative  in- 
terference, with  regard  to  charters.  This  is  a  fingular  ar^ 
gument,  and  implies  a  want  of  confidence  in  the  fupremc 
powers  of  a  Itate.  If  confidence  cannot  be  repofcd  in  the 
Mafdom  and  integrity  of  the  legiflature,  then  the  principle 
mull  be  entirely  banifhed  from  fociety.  A  community 
mud  always  remain  competent  to  the  fuperintendance  of  its 
concerns.  Thofe  general  powers  of  fuperintendance  muft 
be  entrufted  fomewhere.  They  can  be  no  where  more 
fafely  depofited  than  with  the  legiflature.  Subject  to  the 
conftitution,  all  the  rights  and  privileges  of  the  citizen  are 
intrufted  with  them — why  not  charter  rights  as  well  as  o- 
thers  ?  You  object  "  there  is  danger  in  the  precedent.^ 
How  does  that  appear  ?  Has  not  the  Englifh  legiflature 
altered  charters  whenever  it  appeared  proper  or  necefl!ary 
for  the  benefit  of  the  corporation,  or  for  the  general  good  ? 
Has  any  inconvenience,  or  any  mifchief  refulted  from  fuch 
interpofition  ?  Has  it  rendered  charters  lefs  folemn,  per- 
manent and  fecure  ?  I  admit  that  flight  and  tranfient  rea- 
fons  will  not  juftify  an  interference,  but  I  contend  that 
public  and  weighty  reafons  demand  it. 

Why  will  you  dwell  upon  the  privileges  of  a  charter  ?— 
In  the  cafe  of  a  city,  to  whom  do  thofe  privileges  belong  ? 
Are  they  not  the  general  property  of  the  inhabitants,  intend- 
ed for  the  purpofo  of  univerfal  protedlion  and  fecurity? 
Suppofe  the  charter  ihou-ld  be  defe^^ive  in  every  particular. 


83 

tcquifitc  for  the  attainment  of  that  end.  Shall  it  not  re- 
ceive inflant  and  efFe£lual  reformation  ? 

You  tell  me  that  charters  arc  folemn  iiifllMitlons — 
they  arc  not  to  be  violated  or  infringed — feated  upon  an 
adamantine  bafis — they  rife  fiipcrior  to  every  emergency, 
conftitiiting  property  and  creating  privileges,  the  faitli 
and  honor  of  the  legiflature  are  pledged  for  their  fupport/' 
This  is  wild  and  chimerical  doctrine.  Charters  indeed,  are 
privileged  inftitutions  ;  yet  they  mufl  fometimes  give  place 
to  fuperlor  confiderations.  But  in  the  prefent  cafe,  I  afic 
mot  the  violation  of  property,  but  its  protedlion.  I  rcqueft 
not  the  deflruclion  of  privileges,  but  therr  nrefervation. 
What  is  more  facred  than  public  liberty  ?  What  conftitu- 
tlon,  and  what  ordinance,  is  more  folcmn  than  the  rights 
and  happinefs  of  a  community  ?  Where  is  the  confummate 
logician  who  can  perfuade  me  that  tlie  great  principles  of 
focial  juftice,  eternal  and  univerfal  in  their  nature,  avail 
not  when  oppofed  by  the  wax  and  parchment  of  a  charter  ? 

But  it  has  been  laid  that  our  charter  is  of  more  than  or- 
dinary folemnity.  It  has  been  imagined  by  fome,  that  it  is 
even  fuperior  to  the  authority  of  tiie  legiflature.  The  foun- 
dation of  this  extraordinary  doclrine,  has  been  occafioned 
by  a  hafty  mifconception  of  a  claufe  in  our  conRitutlon, 
which  has  not  the  mofl  trivial  relation  to  the  fubje£l:.  The 
only  operation  of  the  palTagc  in  queflion  is  to  prevent  a 
forfeiture  of  the  inflrument,  on  account  of  any  mifconducl: 
committed  within  a  given  interval  of  time.  The  moft  c::- 
tenfive  wildncfsof  conftru^lion  cannot  extend  its  operation 
farther.  It  cannot  interpret  the  fentencc  into  language  of 
general  confirmation. 

I  readily  admit  a  din:in£tion  between  public  and  private 
charters-,  that  the  former  embrace  the  general,  and  the  latter 
individwal  intereft.  Private  charters  convey,  with  fuficient 


accuracy,  all  the  ideas  incident  to  property.  Wlien  they  arc 
granted  for  the  purpofes  of  banking,  or  to  unite  a  fuffici- 
ent  capital  for  the  beneficial  purfuit  of  any  branch  of  trade^ 
in  thefe  cafes,  their  obje£l  is,  the  private  emolument  of  the 
corporation.  Whatever  intereft  the  pubHc  is  fuppofed  to 
derive  from  thofe  eftablifhments,  is  remote  and  indiredfco 
The  obje(^l  of  the  legiflature  in  confenting  to  thofe  grants 
is,  to  facilitate  and  encourage  private  iiiduftry  and  enter- 
prize  ;  fuch  grants  may,  therefore,  be  viewed  in  the  na^* 
ture  of  private  property,  and,  within  a  certain  limitation, 
the  faith  of  government  may  be  confidered  as  pledged  for 
their  fupport. 

I  fay  within  a  certain  limitation,  becaufe  I  never  fhall 
admit  that,  even  in  the  cafe  of  a  private  charter,  the  pledge 
of  government  is  abfolute  and  unconditional.  That  fuch 
a  charter  is  forfeitable  by  mifufer,  is  a  pofition  which  has 
never  been  queftioned.  That  every  legiiiature  mufl  re- 
tain its  general  powers  of  fuperintendance,  with  regard  to 
the  elTential  interefts  of  a  community,  is  another  pofition 
equally  incontrovertible.  Every  private  eftablifnment  mufl 
give  place  to  the  great  confiderations  of  public  policy  or 
juflice.  Whenever  it  is  difcovered  that  a  private  charter 
is  materially  and  manifeflly  repugnant  to  the  general  inter- 
efls  of  a  flate,  it  is  the  right — it  is  the  duty  of  government 
to  interpofe  its  fovereign  jurifdidlon.  Such  right  of  re- 
peal mufl  be  confidered  as  incident  to  all  charters.  In  Eng- 
land the  power  of  parliament,  upon  the  occaiion,  has  nev- 
er been  denied.  The  king,  by  his  fole  prerogative,  may 
create  a  corporation ;  but  it  requires  the  power  of  the 
legiflature  to  difTolve  it.  There  is  a  tacit  and  implied  con- 
dition annexed  to  all  charters.  That  their  diiTolution  mufl 
enfue,  whenever  the  important  interefts  of  ft^e  require 
fuch  event.  But  on  the  other  hand,  I  equally  maintain^ 
that  legifiatures  fhould  proceed  witTi  the  utmoft  delicacy 


85 


and  caution,  v/ith  rcfpc^fc  to  private  charters  :  nor  fhould 
they  interfere  with  fiich  rights,  unlefs  demanded  by  the 
^ofl:  peremptory  neceflity,  orrequelted  by  the  application 
of  the  corporation  itfelf. 

With  refpedt  to  applications  on  the  part  of  corporations, 
let  me  indulge  a  fingle  obfervation.  It  frequently  happens 
.  that  differences  arife  between  the  governors  and  the  mem- 
bers of  thofc  inftitutions,  that  is  between  thofe  who  arc  ap- 
pointed to  manage  their  conterns,  and  thofc  in  whom  the 
fubftantial  intereft  is  vefted.  In  cafes  then  of  manifeft 
abufc,  fliall  it  be  maintained,  that  the  members  of  an  infti- 
tution  are  deftitute  of  remedy.  I  ft  ate  that  emendatory 
provifions  are  eirential  to  the  fecurity  or  to  the  very  exift- 
cnce  of  the  inftitution.  The  members  at  large  complain 
of  the  injuftice  of  their  agents.  They  wifh  to  itatc  the 
mifconducl  of  their  truftees — they  cannot  petition  formal- 
ly, that  is,  they  cannot  produce  a  writing,  folemnifed  under 
their  common  fcal.  Thofe  agents  or  truftees  refufe  to  af^ 
nx  tlie  fighet  to  a  paper  adverfe  to  their  intercfts.  Shall 
there  be  a  defe6^  of  jufticc,  becaufe  no  application  is  made 
by  the  very  individuals,  whofe  fraud  and  peculation  is  ren- 
dered the  fubject  of  complaint  ?  Imagine  the  cafe  of  a 
"bank,  the  mofl  inviolable  of  all  corporate  eflablilhments. 
Would  the  legiflature  be  deaf  to  the  reprefentations  of  a 
numerous  majority  of  ftockholders  ? 

But  however  delicate  our  ideas  may  be,  with  refpe£l 
to  the  inviolability  of  prirate  corporations,  it  would  be  im- 
proper to  extend  that  extreme  delicacy  towards  public  char- 
ters. Thofe  cafes  (land  upon  a  footing  efTcntially  different. 
Our  nice  and  fcrupulous  attention  to  private  charters,  pro- 
ceeds from  the  vigilant  and  jealous  folicitude  with  which 
we  guard  the  rights  of  property.  But  on  the  contrary^ 
inftitutions,  ftrictly  public,  fuch  as  the  charter  of  a  city^ 


to 

Isear  not  the  moi^  diftant  relation  to  propTcr'ty,  They  -ar-e 
cnthely  eftabUlhments  of  government  and  police.  In  rea- 
foning  and  in  legiflating  upon  the  fubjecl,  we  are  ftriclly 
to  confider  them  as  luch.  We  are  fteadily  to  adhere  to  the 
end  in  view.  That  end  is  ibiely  to  promote  the  profperity 
t)f  the  city.  No  alteration  of  the  charter  interferes  with 
the  enjoyment  of  private  property.  If  the  exifting  provifions 
of  the  inftrument,  are  inadequate  or  repugnant  to  the  at- 
tainment of  its  object,  no  imaginable  inconvenience  can 
refult  from  its  amendment. 

It  has  alfo  been  maintained,  that  the  legiflature  cannot, 
or  fnould  not,  interfere  \yith  the  city  charter,  unlefs  upon 
the  application  of  the  Common  Council,  fanctioned  by 
the  magic  influence  of  the  public  feall    Of  all  abfurdities 
which  ever  entered  a  bewildered  brain,  this  doctrine  is  the 
mod  palpably  abfurd.     What!  my  countrymem  when  we 
complain  of  the  mifconduct,when  we  experience  the  oppref- 
fion  of  a  public  body,  are  we  feriouily  told,  that  the  doors  of 
Tcdrcfs  are  fhut  upon  us,  that  we  are  not  to  approach  the 
guardians  of  liberty  and  law,  becaufe  that  very  body  from 
'vhom  we  fuftain  the  injury  will  not  unite  in  the  petition 
Suppofe  a  patriotic  majority  in  that  board  fhould  be  with- 
held from  us,  is  it  to  be  fuppofed,  that  the  men  wlio  live 
and  flourifli  by  the  public  wrongs  Vv-ill  apply  for  their  fup- 
preflion  ?    The  queftion  is  between  the  city  and  the  ma- 
jority of  the  Common  Council.    It  is  a  complaint  of  the 
people  againft  the  ufurpation'of  their  magiflrates.  Arc 
the  violators  of  public  rights  to  become  the  petitioners  for 
public  juftice  ?    Defpoilers  and  yet  protectors  of  their 
Country's  liberties  !    Strange  inconfiftency  !    Moft  mar- 
vellous contrad;6tion  !    Feeble,  alas !  would  be  the  hopes 
-W'hich  were  founded  in  their  interpolition.    Our  only  re- 
fuge is  in  the  independence  of  the  people  and  the  patriot- 
ifm  of  the  legHlature.  The  police  of  the  city  is  the  general 


concern  of  all  its  inhabitants.  The  council:^  of  the  ftats 
will  lillcn  with  attention  to  their  united  rcprefcntations. 

It  is  eflcntial  to  the  intcrefts  of  the  people  that  the  elec-^ 
tive  privilege  fhould  be  fecured  by  permanent  legal  provi- 
fions.  The  rage  of  party,  like  the  malignant  influence  of 
Sirius,  is  ever  deftru6\ive  to  human  happinefs.  The  evils 
M'hich  have  been  inflidlcd  at  one  bsafon  may  again  be  ex- 
perienced at  another.  Juitice  demands,  that  the  rights  of 
the  community  fhould  be  vigilantly  guarded  againft  a  repe- 
tition of  abufes.  If  the  freemen  of  the  city  fliould  be  ref- 
tored  by  a  prefent  adminiflration,  what  ii  to  prevent  a  to- 
tal annihilation  by  their  fucceflbrs  There  is  no  fafcty  iu 
government,  while  the  rights  of  the  conftituent  remain  de- 
pendent upon  the  will  of  his  reprefentative.  There  is  no 
{lability  in  the  privileges  of  the  city,  while  the  exiflenc: 
of  a  conftltuent  branch  of  its  incorporation  is  fubjedl  to  tlic 
pleafure  of  the  Common  Council.  If  our  fyftem  of  repre- 
fentation  is  juft,  let  it  be  extended  to  the  comicils  of  the 
city.  Are  the  duties  of  an  alderman  more  important  thaii 
thofc  of  the  Legiflature  Are  the  deliberations  of  the  city 
council  more  material  to  the  public  happinefs,  than  thofv^ 
of  our  aflembly,  or  the  Houfe  of  Reprefentatives  of  thj 
Union?  What  fubftantial  reafon  can  be  afTigned,.  why  th  j 
citizen  who  is  entitled  to  reprefentation  in  the  natii-wia^ 
councils,  fliould  remain  unheard  and  unreprefented  in  the 
fubordinate  councils  of  the  city  ?  What  folid  arguments 
fliall  eflablifli  the  propriety  of  the  pofition — that  the  fuf- 
frages  of  a  majority  of  the  inhabitants  fliould  depend  upoa 
the  arbitrary  pleafure  of  a  few  of  the  magifl:rates  ? 

We  ftiould  be  faithlefs  to  ourfclves  and  to  poflcrity,  if 
we  trifled  with  the  fubjecl,  if  we  confented  to  any  modifi- 
cation of  an  authority  radically  unjult,  or  accepted  of  any 
terms  inferior  to  a  total  and  falutary  reformatiwi.  Ihi 


88 


rights  of  the  people  cannot  be  made  the  fubje<J!t  of  barter 
or  compromife.  The  duties  we  ewe  to  our  country  are 
folemn  and  impreflive.  Upon  the  right  of  reprefentation 
the  whole  fyftem  of  our  liberties  depends.  It  is  the  living 
foul  which  animates  and  ftrengthens  the  body  of  our  free« 
dom. 

A  court  of  juflice  may  fettle  the  rights  of  difputing  can- 
didates. The  legiflature  alone  can  prevent  a  repetition  of 
the  evils  we  have  experienced,  or  heal  the  wounds  of  2 
violated  charter.  Left  without  a  government,  deftitutc 
of  a  regular  police — "We  have  no  means  of  appointing  in- 
fpedlors  for  the  enfuing  eledion.  There  is  very  little  pro- 
bability of  a  timely  decifion  of  the  rights  of  the  candi- 
dates. Unlefs  the  legiflature  interfere,  the  city  will  inevit« 
ably  lofe  its  reprefentation.  We  are  this  day  called  upon, 
by  a  voice  too  powerful  to  be  refifled,  to  fupport  a  right 
which  is  eflential  to  the  prefervatjon  of  our  liberties,  laws, 
and  conftitutions.  Our  moft  eflential  inftitutions  are  fuf-. 
Dcnded.  Every  focial  tie,  every  important  privilege,  is  at 
ftake.  Let  us  haften  to  the  legifiature,  as  the  guardians 
of  the  public  fafety.  With  the  union,  perfeverance,  and 
alacrity  which  (hould  ever  diftinguifh  freemen,  let  us,, 
faithfully  and  honeftly,  perform  our  duties  to  our  coun- 

LYSANDER. 


